United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE.
matter is before the Court on Defendant Eli Mae Holley's
(“Holley”) Motion to Conduct Emergency Hearing
Pursuant to “MVRA” 18 U.S.C. 3664. [DE 919].
Having reviewed Holley's motion, it is apparent that she
seeks a modification of her restitution.
November 11, 2018, Holley moved for an emergency hearing and
requested the Court to modify her court-ordered restitution
in accordance with her current financial situation. [DE 919].
Upon the Court's order, [DE 930], the United States
responded in opposition to Holley's motion. [DE 940].
Holley having replied, [DE 945], this matter is now ripe for
reasons that follow, Holley's motion for an emergency
hearing and/or modification of her court-ordered restitution
Factual and Procedural Background
August 15, 2012, Holley was indicted for wire fraud in
violation of 18 U.S.C. § 1343. [DE 43]. On December 4,
2013, Holley pleaded guilty without a plea agreement. [DE
331]. This Court, on April 7, 2015, entered an amended
judgment sentencing Holley to 36 months confinement followed
by 3 years supervised release. [DE 777]. In addition, the
Court ordered Holley, held jointly and severally with several
co-defendants, to pay restitution to numerous victims in the
amount of $1, 807, 517.06 with daily interest accruing.
[Id. at 6-7, PageID #6887-88; [DE 798 at 49, PageID
#7266]. No. monthly restitution payment amount was set at the
time of sentencing. [DE 940-2 at 1, PageID #8092].
her supervised release in the on December 1, 2017. On
December 12, 2017, Holley refused to sign a waiver to set a
monthly payment in any amount for her restitution. [DE 940-2
at 1, PageID #8092]. This Court approved the U.S. Probation
Office's report on Holley, indicating that she was not in
compliance because she had failed to pay restitution,
allowing Ms. Holley's restitution payments be held in
abeyance until her disability claim is either approved or she
secures full time employment. [DE 881]. On April 18, 2018,
the Northern District of Georgia accepted transfer of Ms.
Holley's supervised release. [DE 885].
September 10, 2018, Holley came before the Honorably Steve C.
Jones, district judge for the Northern District of Georgia
for a Revocation of Supervised Release hearing. [DE 940-3].
That Court found that Holley had not violated the conditions
of her supervised release because she had been making
payments through the Treasury Offset Program. [Id.].
As of February 4, 2019, Holley has paid $1, 482.39 towards
her restitution obligation, all of which was obtained by
either the Inmate Financial Responsibility Program or the
Treasury Offset Program. [DE 940-6, PageID #8109].
to December 2018, Holley had lived in extended stay hotels,
which cost approximately $700-900 per month. [DE 940-4 at 2,
PageID #8096]. Holley has since moved into an apartment with
her son, who is disabled. [Id.]. She reported that
rent is $1, 100 per month. [Id.]. Holley has now
moved the Court to modify her restitution to account for her
current financial situation. [DE 919].
argues that she is entitled to a modification of her
restitution, demanding an “emergency hearing” in
order that the Court might consider her current financial
circumstances and refashion her restitution. [DE 919].
Specifically, she urges the Court to take into consideration
the fact that she is currently disabled, and the Treasury
Offset Program is deducting $117.00 from the $864.00 per
month she receives from the Social Security Administration.
[Id. at 2, PageID #7981]. She takes particular issue
with the fact that the judgment states that restitution
became “due immediately.” [Id.].
response, the United States argues that no adjustment is
required on a judgment that imposes liability “due
immediately.” [DE 940]. Moreover, the United States
states that even if adjustment is considered the payment
schedule does not prevent the government from further
collection action. [DE 940 at 5-6, PageID #8086-87]. Finally,
the United States contends that Holley has failed to provide
any support upon which to base any material determination,
let alone a reduction. [DE 940 at 6-8, PageID #8087-8089].
extent Holley attacks the Court's restitution order, her
motion must necessarily fail. Under the Mandatory Victim
Restitution Act (the “MVRA”), 18 U.S.C. §
3663A, this Court must order a defendant to pay restitution
to a victim of certain offenses, including any offenses under
Title 18 of the United States Code. 18 U.S.C. §
3663A(a)(1). Restitution orders issued under the MVRA are to
be enforced pursuant to the provisions of 18 U.S.C. §
3664. See 18 U.S.C. § 3663A(d). Section 3664
does not allow a court to consider a defendant's ability
to pay when setting the amount of restitution; rather, the
amount must be set at the full amount of the victims'
losses. 18 U.S.C. § 3664(f)(1)(A). Thus, Holley's
argument that the Court should have considered her ability to
pay when setting restitution is wholly without merit.
the Court did not set a restitution payment schedule, thus it
cannot modify or reduce a non-existent payment schedule, as
Holley requests. The court in setting a payment schedule for
the restitution should consider: (1) the defendants'
financial resources and assets; (2) defendants' projected
future cash flow; and (3) defendants' financial
obligations. 18 U.S.C. § 3664(f)(2). If the court finds
multiple defendants culpable for the “loss of a victim,
the court may make each defendant liable for payment of the
full amount of restitution or may apportion liability among
the defendants to reflect the level of contribution to the
victim's loss and ...