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 the Defendant Arrow-Med
Ambulance, Inc.'s (“Arrow-Med”) “Motion
to Alter or Amend Judgment.” [DE 223]. The Court having
reviewed the Defendant Arrow-Med Ambulance, Inc.'s Motion
[DE 223] and the United States' Response [DE 228], and
for the reasons set forth herein below, IT
IS ORDERED that the Defendant's motion
[DE 223] be, and hereby is, DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
1, 2017, Arrow-Med was charged with one violation of 18
U.S.C. § 1349 and 14 violations of 18 U.S.C. § 1347
and 18 U.S.C. § 2. [DE 1]. On July 31, 2018, Arrow-Med
pleaded guilty to two counts of healthcare fraud involving
the unnecessary ambulance transports of two patients which
occurred on July 10, 2014 and September 10, 2014,
i.e., Counts 7 and 8 of the Indictment, in violation
of 18 U.S.C. § 1347. [DE 152]. The government agreed to
dismiss the remaining 13 counts at sentencing. [DE 152].
to the plea agreement, Arrow-Med agreed to the imposition of
a money judgment in the amount of $249, 539.00, jointly and
severally liable with Jay Arrowwood and Lesa Arrowwood. [DE
152 at 4, PageID #1076]. The fine range calculated under the
guidelines was $240, 000.00 to $480, 000.00. On May 14, 2019,
the Court entered a judgment against Arrow-Med, assessing a
fine of $240, 000.00. [DE 221].
24, 2019, Arrow-Med moved pursuant to Federal Rule of Civil
Procedure 59(e), requesting the Court to alter and/or amend
judgment. [DE 223]. In particular, Arrow-Med argues that the
Court should reduce the judgment amount based on its
“inability to pay” or, alternatively, set a
“reasonable payment schedule” to pay the fine.
[Id. at 2, PageID #2250]. In support, Arrow-Med
contends that its eventual settlement of related civil False
Claims Act had not occurred by the time the United
States Probation Office was conducting its presentence
investigation, and therefore the settlement was not
considered when determining Arrow-Med's ability to pay
for purposes of the presentence report and subsequent
sentencing. [Id. at 1-2, PageID #2249-50]. As a
result, Arrow-Med requests the Court to make a
“significant downward departure from the guideline
range in assessing the fine amount, or, alternatively grant
the Defendant the ability to make reasonable installments
over a period of several months or years.”
[Id. at 3, PageID #223].
Court's direction, [DE 224], the United States filed its
response on June 4, 2019. The United States makes two
arguments in opposition to the Arrow-Med's motion. [DE
223]. First, it argues that the Court lacks jurisdiction to
alter or amend the fine. [DE 228 at 1-3, PageID #2284-86].
Second, the United States contends that regardless of the
Court's jurisdiction the facts support the $240, 000.00
fine. [Id. at 3-6, PageID #2286-2288]. As a result,
Arrow-Med's motion is now ripe for review.
no legal basis to support Arrow-Med's request to alter or
amend its criminal fine. At the outset, the Court must note
that Arrow-Med has cited no legal grounds - save for Federal
Rule of Civil Procedure 59(e) - as to why the Court should
alter and/or amend the judgment imposing a criminal fine on
Arrow-Med. [DE 223]. The language of Joint Local Rule of
Criminal Procedure 12.1(a) provides as follows:
Except for routine motions - such as motions for an extension
of time - a motion must state with particularity the grounds
for the motion, the relief sought, and the legal argument
necessary to support it.
pro se cases, this Court has no authority to create
arguments for moving parties. See Coleman v. Shoney's
Inc., 79 Fed. App'x. 115, 157 (6th Cir. 2003).
Without some effort at legal argumentation, a party cannot
meet the standard set forth in LCrR 12.1(a).
instant case, the Arrow-Med points only to Fed.R.Civ.P.
59(e), a civil rule, to support its argument that the Court
should alter or amend its judgment imposing a fine on
Arrow-Med in this criminal action. [DE 223 at 1, PageID
#2249]. Arrow-Med makes no argument as to how or why
Fed.R.Civ.P. 59(e) would apply in a criminal case. As a
result, we find Arrow-Med's citation of a single,
inapplicable civil rule fails to meet the requirements of
so, the Court finds no other legal authority supporting
Arrow-Med's request to alter or amend its criminal fine.
The United States correctly notes that the language of 18
U.S.C. § 3572(c) provides three mechanisms to alter or
amend a criminal fine. [DE 228]; see also,
United States v. Brumfield, 125 F.Supp.3d 648, 650
(W.D. Mich. 2015). First, a sentence to pay a fine may be
subsequently modified or remitted under 18 U.S.C. §
3573. Second, a criminal fine may be corrected under Federal
Rule of Criminal Procedure 35 and 18 U.S.C. § 3742.
Third, a criminal fine may be appealed and modified under 18
U.S.C. § 3742. In the instant action, none of the three
mechanisms for altering or amending Arrow-Med's criminal
fine are available to Arrow-Med.
as noted above, under certain circumstances a fine may be
modified or remitted under 18 U.S.C. § 3573. However,
the language of the statute provides that this may only occur
in the Court's discretion “[u]pon petition of the
Government showing that reasonable efforts to collect a fine
or assessment are not likely to be effective...”
Id. As the Sixth Circuit has confirmed,
“...the statutory authorization for the
government to petition for rescission of a fine, 18
U.S.C. § 3573, is not available to a defendant.”
United States v. Mays, 67 Fed.Appx. 868, 869 (6th
Cir. 2003) (emphasis in original) (internal citation