United States v. Salamon

1

UNITED STATES OF AMERICA, Plaintiff, v. JEREMIAH J. SALAMON, Defendant.

No. 3:09-CR-30021-MAP

United States District Court, D. Massachusetts

August 8, 2023

REPORT AND RECOMMENDATION REGARDING DEFENDANT'S REQUEST FOR AN ORDER OF PAYMENT SCHEDULE FOR RESTITUTION ORDER (Docket. No. 195)

KATHERINE A. ROBERTSON United States Magistrate Judge

I. INTRODUCTION

On May 25, 2011, the Honorable Michal A. Ponsor sentenced Defendant Jeremiah J. Salamon (“Defendant”) to pay restitution of $300,000 in connection with his convictions for advertising and distributing material involving the sexual exploitation of minors. Before the court is Defendant's Request for an Order of Payment Schedule for Restitution Order in which Defendant contends that the court erred when imposing his sentence by failing to set a schedule for payment of restitution, and requests that the court amend the criminal judgment to incorporate the payment schedule he proposes (Dkt. No. 195). The court referred Defendant's motion for report and recommendation to me (Dkt. No. 200). For the reasons set forth below, I recommend that the motion be denied.^[1]

II. FACTUAL BACKGROUND

On April 8, 2010, the United States charged Defendant by superseding indictment with two counts of advertising material involving the sexual exploitation of minors in violation of 18 U.S.C § 2251, and one count each of distribution of material involving the sexual exploitation of minors and possession of material involving the exploitation of minors, in violation of 18 U.S.C § 2252 (Dkt. No. 42). The government and Defendant entered into a plea agreement (Dkt. No. 69), and on May 25, 2011, following Defendant's guilty plea, the court entered judgment, sentencing Defendant to 236 months of incarceration followed by 180 months of supervised release, imposing a special assessment of $400, and ordering restitution of $300,000 to be split evenly between two victims (Dkt. No. 83 at 7-8, 19-31). The court did not impose a fine because it found that Defendant lacked the financial ability to pay one (Dkt. No. 83 at 41). The portion of the criminal judgment addressing restitution provided that restitution was to be paid “while defendant is incarcerated” (Dkt. No. 78 at 5) and further provided that:

Payment of the restitution shall begin immediately and shall be made according to the requirements of the Federal Bureau of Prisons' Inmate Financial Responsibility Program while the defendant is incarcerated and according to a Court-ordered repayment schedule during the term of supervised release. Should the defendant become able in the future (inheritance, etc.), he is to make a lump sum payment to satisfy the restitution obligation.

(Dkt. No. 78-1).^[2]The court declined to impose interest on the restitution amount while Defendant was incarcerated (Dkt. No. 78 at 5; Dkt. No. 83 at 39).

According to Defendant, once he entered the BOP system, he obtained a prison job and initially made payments of $25 each quarter toward his restitution obligation in compliance with IFRP requirements.^[3]Defendant further maintains that, on October 13, 2015, a staff counselor targeted him because he had been convicted of sex offenses and arbitrarily increased his IFRP payments to $50 per month (Dkt. No. 195 at 2). Notwithstanding this increase, by May 17, 2021, Defendant had approximately $1,562.68 in his inmate trust account. The United States moved to have all of these funds applied to Defendant's outstanding restitution obligation (Dkt. No. 186). On May 6, 2022, the government and Defendant, who was represented by court-appointed counsel, agreed to resolve the motion with BOP turning over $800 from Defendant's inmate trust account to the court to apply to his restitution obligation. The parties further agreed that Defendant would continue to make monthly payments under the IFRP (Dkt. No. 192).

Defendant is presently incarcerated at Fort Dix Federal Correctional Institution (Dkt. No. 195 at 1). He claims that in March 2023, he learned for the first time from the Federal Correctional Institution Unit Team assigned to him that, absent a court-ordered payment schedule and in the aftermath of the government's motion and the court's order regarding restitution, there was confusion as to how his restitution obligation should be handled. According to Defendant, this is when he first became aware that the court had erred by failing to set a payment schedule when it sentenced him (Dkt. No. 195 at 3). Defendant reports that his monthly prison earnings average $47.86 and that, as of May 10, 2023, he had accumulated approximately $921 in his inmate trust fund account (Dkt. No. 195 at 5). Defendant moves that the court enter a schedule requiring him to pay no more than $50 per quarter while he is incarcerated and during his post-release halfway house placement, and no more than $100 per month during his period of supervised release (Dkt. No. 195 at 16-17).

III. DISCUSSION

Section 3664(f)(2) of Title 18 provides that, “[u]pon determination of the amount of restitution owed to each victim, the court shall.. .specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid, in consideration of -(A) the financial resources and other assets of the defendant .; (B) projected earnings and other income of the defendant; and (C) any financial obligations of the defendant ..” Defendant asserts that the court erred by failing to impose a specific schedule for payment of restitution at the time of sentencing and failing to consider his financial resources in the restitution order as required by 18 U.S.C. § 3664(f)(2). He further argues that the court improperly delegated the scheduling of restitution payments to the BOP. For its part, the government contends that the court does not have authority to amend the restitution order under the applicable statutes and that, in any event, the court's restitution order properly ordered that Defendant begin paying restitution immediately and did not impermissibly delegate its authority to the BOP (Dkt. No. 197 at 1).

Because I agree that the court lacks the authority to modify the restitution judgment at this time, and, even if it had such authority, did not err in its order scheduling payment of Defendant's restitution obligation, I recommend that Defendant's motion be denied.

A. This Court Lacks the Authority to Grant Defendant's Motion

Under 18 U.S.C § 2259, restitution for violations of 18 U.S.C §§ 2251 and 2252 is to be “issued and enforced” as prescribed by 18 U.S.C § 3664. Subject to narrow statutory exceptions, a district court lacks subject-matter jurisdiction to amend a final criminal judgment, including the restitution portion of such a judgment, after it has entered. See United States v. Harvey, 20 F.4th 71, 75-76 (1st Cir. 2021) (“[T]he district court was without inherent authority to modify [the defendant's] criminal sentence once the final judgment was imposed .... That lack of authority necessarily extended to the restitution portion of the judgment because restitution was made part of his criminal sentence.”) (footnote omitted).

Section 3664(o) “provides an exhaustive list of the ways in which a mandatory restitution order [such as the order in this case] can be modified,” United States v. Puentes, 803 F.3d 597, 599 (11th Cir. 2015) (cited with approval in Harvey, 20 F.4th at 77), as follows:

(1) such a sentence can subsequently be -

(A) corrected under Rule 35 of the Federal Rules of Criminal Procedure and section 3742 of chapter 235 of this title;

(B) appealed and modified under section 3742;

(C) amended under subsection (d)(5); or

(D) adjusted under section 3664(k), 3572, or 3613A

18 U.S.C. § 3664(o). None of these provisions apply to the instant case. First, since the restitution order was part of Defendant's sentence, he could have challenged it under Fed. R. Crim. P. 35(a). However, Rule 35(a) only allows errors to be corrected within 14 days after sentencing, and that time has long since passed. See Harvey, 20 F 4th at 78 (“The district court could not act under Rule 35(a) here because the amendment [to the restitution portion of the defendant's criminal judgment] took place nine years after the original criminal sentence was imposed, which is well outside of Rule 35(a)'s 14-day time limitation.”). Second, Defendant could have requested appellate review under 18 U.S.C. § 3742(a), which allows a defendant to appeal the legality of a sentence, as Defendant purports to do here (See Dkt. No. 199 at 2). However, because such an appeal also must be brought within 14 days of sentencing, this option also is unavailable. See United States v. Gonzalez-Rodriguez, 777 F.3d 37, 40 (1st Cir. 2015); Fed. R. App. P. 4(b)(1)(A). Moreover, Defendant waived his right to appeal his sentence as part of his plea agreement, further foreclosing this option (Dkt. No. 69 at 6; Dkt. No. 82 at 45-47). See United States v. Thompson, 62 F.4th 37, 41-42 (1st Cir. 2023) (dismissing an appeal based on a defendant's informed waiver of appellate rights). Third, an amendment to a restitution order pursuant to § 3664(d)(5) may be made only up to ninety days after sentencing when a victim's losses were not ascertainable at sentencing “or when victims discover further losses after sentencing” and petition for an amendment to the restitution order. United States v. Pelletier, 1:06-cr-00058-JAW-01, 2017 WL 5162800, at *9 (D. Me. Nov. 7, 2017). This provision does not apply when a defendant seeks to amend a restitution order. See id. Finally, an adjustment may be made under 18 U.S.C. §§ 3664(k), 3572, or 3613A only when it is demonstrated there has been a material change in the defendant's economic circumstances that might affect the ability to pay...