United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
M. Hood, Judge
criminal action is before the Court on Defendant Timothy Mark
Poynter, II's pro se motion to defer restitution
payments. [DE 46]. Poynter requests that the Court defer his
mandatory restitution until he is on supervised release. He
argues that the Bureau of Prisons (“BOP”)
implemented a payment plan in violation of 18 U.S.C. §
3572, a statute that describes the district court's duty
to prescribe the time and method of restitution payments.
Poynter states in his motion that the BOP is automatically
deducting a percentage of funds in his prison trust account
on a monthly basis and that he is unable to meet the
obligations of the payment plan while incarcerated.
United States responded in opposition to the motion [DE 48],
and Poynter did not reply. Thus, this matter is ripe for
August 15, 2018, Poynter pleaded guilty to one count of
knowingly attempting to persuade, induce, entice, and coerce
a person under the age of eighteen to engage in sexual
activity in violation of 18 U.S.C. § 2422(b). [DE 34].
Poynter was sentenced to serve 150 months in a federal
institution and was ordered to pay restitution in addition to
a $100 assessment.
to 18 U.S.C. § 3663A and an agreement between the
parties, Poynter was ordered to pay $1, 000 to each
identified victim, for a total of $2, 000 in restitution. [DE
38-1]. The agreement noted that restitution would be due
within thirty days of the entry of the order. [Id.].
The Court's amended judgment stated that restitution was
due immediately and Poynter was not exempt from making
payments while he was incarcerated. [DE 45 at 8]. The amended
judgment also required Poynter to participate in the
BOP's Inmate Financial Responsibility Program
(“IFRP”), a course designed to help inmates
manage and pay their financial obligations. [Id.].
Poynter expressly agreed to participate in the IFRP in his
plea agreement. [DE 22 at 6]. He is currently incarcerated in
the Federal Correctional Institution in Forrest City,
18 U.S.C. 3663A,  also known as the Mandatory Victims
Restitution Act of 1996 (“MVRA”), a defendant who
commits an inherently violent offense in which an
identifiable victim or victims have suffered a physical
injury or pecuniary loss is required to pay restitution. The
district court must order restitution in full without
consideration of the defendant's financial circumstances.
See United States v. Vandeberg, 201 F.3d 805, 812
(6th Cir. 2000); see also 18 U.S.C. §
3664(f)(1)(B). The MVRA also requires, pursuant to 18 U.S.C.
§ 3572, that the district court specify in the
restitution order the manner in which restitution is to be
paid, taking into consideration the financial resources of
the defendant, his projected earnings, and other financial
obligations. 18 U.S.C. § 3664(f)(1)(B)(2)(A)-(C). A
restitution order may provide that the defendant pay the
amount owed in a lump sum, in periodic payments, or in
nominal payments until it is paid in full. Id. at
(f)(3)(A) and (B).
IFRP is a work program that encourages inmates to meet their
financial obligations during incarceration. See 28
C.F.R. § 545.10. These financial plans are to be
developed by the inmate and BOP staff, and must include
strategies to pay court-ordered restitution among other fines
and obligations. Id. The program is voluntary,
though total refusal by an inmate to comply with his
financial plan may result in various penalties identified in
the program's regulations. 28 C.F.R. §
sees the district court's mandated participation in the
IFRP as a usurpation of the judiciary's power and
obligation to set payment schedules for restitution. It is
his perception that the Court did not set a payment schedule
at all and alleges that the BOP took it upon itself to impose
one. For several reasons, the Court denies Poynter's
motion to defer payments until the time of his supervised
under the MVRA, ordering immediate payment of restitution can
and often is an appropriate form of the statutorily required
restitution payment schedule. The United States, in its
response to Poynter's motion, points to a Sixth Circuit
Court of Appeals decision addressing a separation-of-powers
argument similar to the one made by Poynter here.
See [DE 48 at 1-2 (citing Weinberger v. United
States, 268 F.3d 346 (6th Cir. 2001))]. In that case,
the Sixth Circuit held that the “district court, in
effect, adopted these terms and conditions in its sentencing
order and, by doing so, did not improperly delegate authority
to the Bureau of Prisons.” Id. at 361.
difference between the matter before the Court and the
restitution ordered in Weinberger is that the Sixth
Circuit evaluated the IFRP under the previous version of the
MVRA. Id. at 355. In that case, the Sixth Circuit
adopted the Third Circuit's finding that the former
version of the MVRA gave the district court more discretion
in setting payment schedules than does the current version.
Id. at 425-46 (citing United States v.
Coates, 178 F.3d 681, 683 (3d Cir. 1999)). As noted in
United States v. Davis, the Sixth Circuit has
“yet to determine in a published opinion a district
court's duties under the MVRA with regard to setting
restitution payment schedules.” 306 F.3d 398, 425 (6th
Cir. 2002). The court held that the district court erred in
failing to set the defendant's restitution payment
schedule. Id. at 426. However, the Sixth Circuit
noted that its holding did not preclude district courts from
“eliciting the assistance of others in setting such a
is distinguishable from this motion before the Court. As the
Sixth Circuit notes, the terms of the defendant's payment
schedule were unclear at the time of his appeal. Id.
The defendant contended that the BOP set a payment schedule,
but did not indicate if he was participating in the IFRP
amended judgment, on the other hand, clearly states under
“SCHEDULE OF PAYMENTS” that the Court,
“having assessed the defendant's ability to pay,
” ordered a lump sum of $2, 100 due immediately and in
accordance with special instructions to pay restitution to
the clerk and to participate in the IFRP. [DE 45 at 8]. This
Court also took into account Poynter's ability to pay
when fines and interest were waived. It is clear that the
Court (1) considered Poynter's financial circumstances as
required under the MVRA, and (2) provided him with a clear
payment schedule by mandating ...