Opinion
97 Cr. 817 (DC), 05 Civ. 7845 (DC).
December 22, 2005
MICHAEL J. GARCIA, Esq., United States Attorney for the Southern District of New York, By: Avi Weitzman, Esq., New York, New York, Assistant United States Attorney.
JOSE MAISONET, Pollock, Louisiana, Defendant Pro Se United States Penitentiary.
MEMORANDUM DECISION
Defendant Jose Maisonet pled guilty on August 27, 1999, to one count of racketeering and two counts of conspiracy to commit murder. He was sentenced on December 6, 1999, to a term of imprisonment of 480 months, a fine of $10,000, and a special assessment of $200. (Sentencing Tr. 18-20).
On July 25, 2005, Maisonet moved, pro se, "for a modification of fine to set installment payments." It is unclear what the authority is for Maisonet's motion. He moves pursuant to 18 U.S.C. §§ 2248(d), 2327(d), and 3582(b). Sections 2248(d) and 2327(d), however, were eliminated by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 18 U.S.C. §§ 2248 and 2327; see United States v. Porter, 41 F.3d 68, 71 (2d Cir. 1994) (before they were eliminated by AEDPA, sections 2248(d) and 2327(d) provided that "[a] victim or the offender may petition the court at any time to modify a restitution order as appropriate in view of a change in the economic circumstances of the offender") (quoting statutes). Moreover, section 3582(b) addresses modification of terms of imprisonment, not fines. See 18 U.S.C. § 3582(b) ("Notwithstanding the fact that a sentence to imprisonment can subsequently be . . . modified[,] . . . corrected[,] . . . or appealed . . . [,] a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.") (emphasis added). Additionally, defendant cannot seek relief through a motion under 28 U.S.C. § 2255. See Kamiski v. United States, 339 F.3d 84, 88-89 (2d Cir. 2003). Therefore, it appears that the motion should be construed as a petition for writ of error coram nobis. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Whatever it is construed as, the motion is denied.
This is the third time Maisonet is seeking this relief. In a letter filed on July 10, 2003, defendant alleged that the Court had impermissibly delegated to the Bureau of Prisons ("BOP") the determination of the schedule of installment payments for the fine owed. Defendant requested that the Court set a monthly payment schedule with respect to the fine owed and informed the Court that he "willingly offers 10 percent of his monthly pay to be credited towards his obligation of paying the fine." In a memorandum endorsement of defendant's letter in July 2003, the Court denied defendant's motion because "[t]he terms of payment were set at sentencing." See Maisonet v. United States, 97 CR 817 (DC), 2003 WL 22400187, *1 (S.D.N.Y. Oct. 21, 2003) (quoting memorandum endorsement of July 2003 letter).
On October 7, 2003, defendant submitted an identical letter, again raising the issue of the payment of the fine and requesting that the Court set a "monthly payment schedule." The Court denied Maisonet's second request, finding that the request was untimely.Id. The Court further clarified that the fine was "due immediately" and that the
BOP could follow its established procedures for the collection of fines and assessments. If Maisonet has the means to pay the fine in its entirety, he is to do so now. If he does not have the means to pay whatever remains of the fine now, the BOP may collect the fine in accordance with the collection procedures set forth in its regulations.Id. at *2.
The present motion was received by the Court's Pro Se Office on July 25, 2005. Maisonet alleges, for the third time, that the Court impermissibly delegated to the BOP the determination of the schedule of installment payments for the fine owed. (Def. Mot. 4-5). Defendant requests that the Court set a monthly payment schedule of twenty-five dollars quarterly with respect to the fine owed. (Def. Mot. 4). In his motion, defendant informs the Court that he has been placed on refusal status and is being penalized for refusing to allow the BOP to set installment payments. (Id. at 3).
Defendant's request is denied.
First, defendant's present motion is untimely, as were his prior two requests. Sentence was imposed more than six years ago, and defendant's time to seek relief from the judgment has long passed.
Second, on the merits, Maisonet is not entitled to relief. As clarified in my October 21, 2003, decision, the fine was due immediately and the delegation to the BOP was permissible.Maisonet, 2003 WL 22400187, *1-2. Section 3572(d)(1) provides that
A person sentenced to pay a fine . . . shall make such payment immediately, unless, in the interest of justice, the court provides for payment on a date certain or in installments. If the court provides for payments in installments, the installments shall be in equal monthly payments over the period provided by the court, unless the court establishes another schedule.18 U.S.C. § 3572(d)(1). If a court exercises the discretion provided by Section 3572(d)(1) and waives the requirement that a fine or restitution be due immediately, the court may not then delegate to the BOP the duty to set the payment schedule. See United States v. Workman, 110 F.3d 915, 919 (2d Cir. 1997) (holding that § 3572(d) "does not permit the court to delegate scheduling to other authorities"); United States v. Mortimer, 94 F.3d 89, 91 (2d Cir. 1996) (holding that courts may not delegate the scheduling of installment payments for restitution). Where, as here, a court imposes a fine making payment "due immediately," however, there is no impermissible delegation and the "[BOP] may establish its own procedures . . . for collection of the court ordered fines and assessments." Maisonet, 2003 WL 22400187, *1-2 (quoting Solis v. Menifee, No. 99 Civ. 9072 (GEL), 2000 U.S. Dist. LEXIS 14012, *1 (S.D.N.Y. September 22, 2000)); see also McGhee v. Clark, 166 F.3d 884, 886 (7th Cir. 1999) (holding that court need not establish payment schedule where fine has been ordered due in full immediately). The BOP's procedures may include, for example, mandatory participation in the "Inmate Financial Responsibility Program" for the collection of court-ordered fines. Solis, 2000 U.S. Dist. LEXIS 14012, *1. Further, the BOP may penalize a prisoner for failure to participate in the IFRP. Id. at *2.
Third, the Court has already ruled in this case on the exact same issue defendant now presents. "[W]here litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964). Defendant has not presented any reason why I should revisit my prior rulings on the same issue.
To the extent that defendant's motion appears to raise a challenge to the imposition of a fine based on Booker/FanFan and United States v. Crosby, it is also denied. The Second Circuit has clarified that "Booker is not retroactive, i.e., it does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued." Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005).
Accordingly, the Court has not delegated to the BOP the responsibility for setting an installment schedule, as defendant suggests. Rather, the Court has required defendant to comply with the BOP's regulations as applied to the collection of monetary penalties. Consequently, defendant's request for an installment schedule for repayment of the monetary penalty imposed at his sentencing is hereby denied for the third time.
SO ORDERED.