United States v. Ellis, Kelvin ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4677
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KELVIN ELLIS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 CR 30010—William D. Stiehl, Judge.
____________
ARGUED FEBRUARY 21, 2007—DECIDED APRIL 3, 2008
____________
Before EASTERBROOK, Chief Judge, and FLAUM and SYKES,
Circuit Judges.
SYKES, Circuit Judge. The single issue raised in this
appeal concerns the extent of a district court’s obligation
to establish a payment schedule when imposing a crim-
inal fine. The parties contest whether our decision in
United States v. Day, 418 F.3d 746 (7th Cir. 2005), which
held that a district court must establish a payment sched-
ule when imposing restitution, is applicable to the imposi-
tion of fines. Because the restitution and criminal fine
statutes differ in the obligations they place on district
courts, we conclude that Day is inapplicable to the latter.
2 No. 05-4677
Kelvin Ellis pleaded guilty to evasion of income taxes
for the 2001 tax year. He was sentenced to twenty-one
months in prison and three years of supervised release,
and the district court imposed a $100 special assessment
and a $3,000 fine. When the judge set the fine at Ellis’s
sentencing hearing, he said:
It is further ordered that the Defendant pay to the
United States a fine in the amount of $3,000, and a
special assessment of $100. The fine and special assess-
ment, totaling $3,100, are due immediately and are
payable through the Clerk of the United States Dis-
trict Court.
If the Defendant is unable to satisfy the fine and
special assessment during the period of incarceration,
the payment of any unpaid balances shall become a
condition of supervised release. And the Defendant
shall pay the unpaid balances at the rate of $100 a
month or ten percent of his monthly gross income,
whichever is greater.
The court’s written judgment stated:
Payments are due immediately, through the Clerk of
the Court, but may be paid from prison earnings in
compliance with the Inmate Financial Responsibility
Program. Any financial penalties that remain unpaid
at the commencement of the term of supervised re-
lease shall be paid at the rate of $100.00 per month, or
10% of defendant’s monthly gross earnings, whichever
is greater.
The sole issue Ellis raises on appeal is whether the
district court erred by failing to establish a schedule for
making fine payments while Ellis is incarcerated. Ellis
raised no objections before the district court regarding the
No. 05-4677 3
imposition of his fine; consequently, we review his claim
for plain error.1 FED. R. CRIM. P. 52(b).
Under the federal statute governing imposition and
payment of criminal fines, the sentencing court has the
option of making a fine payable immediately or in install-
ments. 18 U.S.C. § 3572(d)(1). If a fine is ordered payable
immediately, “ ’immediate payment’ does not mean
‘immediate payment in full;’ rather it means ‘payment
to the extent that the defendant can make it in good
faith, beginning immediately.’ ” United States v. Jaroszenko,
92 F.3d 486, 492 (7th Cir. 1996) (citation omitted). If a
1
We have previously held that an impermissible delegation of
the authority to establish a restitution payment schedule
constitutes plain error. See United States v. Pandiello, 184 F.3d 682,
688 (7th Cir. 1999). Whether the holding of Pandiello applies to a
forfeited error in the imposition of a fine would depend in
part on the analysis in our more recent decision in United
States v. Tejeda, 476 F.3d 471 (7th Cir. 2007). In Tejeda, we held
that an impermissible delegation to a probation officer of the
authority to schedule drug testing during supervised release
does not constitute plain error. Id. at 475. In doing so, we
concluded that an error of this sort does not “impugn the
fairness, integrity, or public reputation of the criminal pro-
ceedings,” id., noting “[t]he ease with which the error in these
cases could be corrected” by the district court, id. at 476.
Although Tejeda stated that its holding “is not meant to have a
direct effect” on delegation arguments regarding fines or
restitution, id. at 473 n.1, the analysis applied there has some
force in this context, as errors in the manner in which a fine
was imposed also are easily correctable by the district court.
See 18 U.S.C. § 3572(c). However, because we ultimately con-
clude that no error, plain or otherwise, occurred in this case,
we leave the question of the reach of Tejeda’s plain-error analysis
for another day.
4 No. 05-4677
fine is ordered payable in installments, “the installments
shall be in equal monthly payments over the period
provided by the court,” 18 U.S.C. § 3572(d)(1), and “the
length of time over which scheduled payments will be
made shall be set by the court,” id. § 3572(d)(2).
Because § 3572 obligates the sentencing court to estab-
lish a schedule if it chooses to permit installment payments,
we have previously held that a court cannot delegate to the
Probation Department the authority to set a payment
schedule. See United States v. Arellano, 137 F.3d 982, 986 (7th
Cir. 1998) (“The district court itself must set the payment
schedule for fine[s] . . . .”). However, because the court has
no equivalent responsibility when it orders a fine payable
immediately, we have also concluded that a “payment
schedule established by the [Bureau of Prisons (“BOP”)
through the Inmate Financial Responsibility Program
(“IFRP”)] does not conflict with [a] sentencing court’s
immediate payment order.” McGhee v. Clark, 166 F.3d 884,
886 (7th Cir. 1999) (emphasis added).
Because the district court ordered Ellis’s fine payable
immediately, its order is governed by McGhee, which leaves
the BOP free to establish payment amounts while Ellis is
incarcerated. Ellis maintains McGhee must be reconsidered
in light of this court’s decision in Day. In Day, evidence
established that the defendant could not presently make
any payments toward restitution; we held that an order
making his restitution payable immediately operated to
“assign[ ] responsibility to the Probation Office to formu-
late a payment schedule” and this constituted an impermis-
sible delegation of judicial authority to the defendant’s
probation officer. 418 F.3d at 761.
Day concerned the Mandatory Victim Restitution Act
(“MVRA”), 18 U.S.C. § 3664, which differs markedly from
the fine statute, 18 U.S.C. § 3572. Under the MVRA,
No. 05-4677 5
the court is required to establish “the manner in which,
and the schedule according to which, the restitution is to
be paid.” Id. § 3664(f)(2). In setting that schedule, the
court is also obligated to consider factors regarding the
defendant’s financial resources and present ability to
pay. Id. Because the evidence in Day indicated the defen-
dant would be unable to pay the ordered restitution
immediately, we concluded the MVRA obligated the
district court to establish a payment schedule. In so hold-
ing, we also concluded that “the most direct, and
most efficient, way for a district court to perform its
statutory duty [under the MVRA] is to fix a payment
schedule and to set forth that schedule at the time of
sentencing.” 418 F.3d at 761.
Day’s holding did not reach criminal fines, and the
differences between the MVRA and the fine statute,
§ 3572, persuade us that Day’s concern about improper
delegation of judicial authority is not implicated here. The
MVRA makes restitution mandatory regardless of a
defendant’s ability to pay, and as a result permits the
district court to consider ability to pay only when estab-
lishing the schedule of payment. 18 U.S.C. § 3664(f)(1)(A).
As explained above, § 3664(f)(2) requires the court to use
information about the defendant’s ability to pay when
carrying out its duty of establishing the manner of pay-
ment; the statute accordingly specifies numerous possible
methods of payment. See id. § 3664(f)(3) (permitting
payment by lump-sum, installments, periodic nominal
amounts, or a combination thereof).
In contrast, criminal fines are discretionary, and sen-
tencing courts must consider ability to pay when determin-
ing whether to impose any fine at all. Id. § 3572(a). Perhaps
because its process requires this threshold determina-
tion, the fine statute contains no requirement that the
6 No. 05-4677
sentencing court establish any manner of payment, but
rather makes all fines due immediately absent a court
order to the contrary. Id. § 3572(d)(1). That is, it permits
but does not require the district court to set an alterna-
tive payment schedule. Because Day’s holding turns on
mandatory payment scheduling provisions in the MVRA
that are absent in § 3572, we conclude Day should not be
extended to the imposition of fines under § 3572. Ellis’s
argument remains precluded by McGhee, and his appeal
must fail.
Ellis also maintains that because the district court
established monthly payments toward any outstanding fine
amount as a condition of supervised release, the court was
required to set a complete schedule of payments, including
those to be made during incarceration. By imposing this
supervised release condition, Ellis contends, the court
converted the fine “due immediately” into a fine due in
installments, thus precluding the BOP from establishing
payment amounts while he is incarcerated. This argument
misconstrues the court’s order, which did not establish
installment payments in the manner contemplated by the
statute, but rather only imposed a minimum payment upon
which continued release from prison would be conditioned
if the fine remained unpaid when the defendant was
released from prison. Cf. United States v. Fariduddin, 469
F.3d 1111, 1113 (7th Cir. 2006) (“[a] floor under payments
differs from a schedule”). “[T]he court’s . . . order do[es]
not delegate scheduling of fine payments or, in fact, any
function to the BOP,” but rather only permits payment
in compliance with the IFRP, which McGhee held is per-
missible. 166 F.3d at 886.
The district court’s order is AFFIRMED.
USCA-02-C-0072—4-3-08