United States District Court, D. Maine
ORDER ON MOTION FOR SENTENCING COURT TO SET
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Court rejects a defendant's objections to the restitution
order set forth in its criminal judgment. In view of the fact
that the victim has been partially reimbursed for the loss
caused by the defendant's criminal act, the Court will
order restitution payments to the victim first and the
in the evening of September 12, 2011, James Stile entered the
E.W. Moore & Son Pharmacy in Bingham, Maine. United
States v. Stile, 845 F.3d 425, 427 (1st Cir. 2017). He
wore a baseball cap, sunglasses, a dust mask, and purple
rubber gloves. Id. As he entered the store, he
pulled a sawed-off shotgun from his pants. Id. He
walked to the pharmacy counter at the back of the store and
ordered three employees to lie on their stomachs.
Id. When a customer walked in, Mr. Stile forced him
behind the pharmacy counter with the employees. Id.
Mr. Stile handed the owner of the pharmacy a black duffel bag
and ordered him to fill it with drugs. Id. Mr. Stile
tied the hands and feet of the owner, the customer, and the
employees with zip ties. Id. He then departed the
store, taking $12, 889.93 worth of drugs and $417 in cash.
October 20, 2011, a federal grand jury indicted Mr. Stile for
committing this pharmacy robbery. Indictment (ECF
No. 8). On October 30, 2014, Mr. Stile pleaded guilty to this
charge. Min. Entry (ECF No. 541). The Court
sentenced Mr. Stile on May 29, 2015. J. (ECF No.
579). The Court ordered Mr. Stile incarcerated for 120
months; it placed him on supervised release for five years
following his prison sentence; and, critical to this motion,
it found that Mr. Stile owed $13, 306.93 to E.W. Moore &
Son, the pharmacy, and it ordered Mr. Stile to pay
restitution in full “due immediately . . . .”
Id. It also ordered him to pay a $100 special
the sentencing hearing, the Court made its guideline
calculations and found that restitution was mandatory in the
amount of $13, 306.93. Sentencing Tr. 185:24. Mr.
Stile did not object to this finding. Id. 186:5-7.
In pronouncing the sentencing judgment, the Court stated:
The Court imposes a criminal monetary penalty on Count 1 in
the amount of $100. The Court finds the defendant does not
have the ability to pay a fine, and the court will waive the
fine in this case. Restitution is mandatory in the amount of
$13, 306.93. The defendant shall make restitution to the E.W.
Moore & Son Pharmacy at 337 Main Street, Bingham, Maine
04920, in the amount of $13, 306.93. The Court finds the
defendant does not have the ability to pay interest on the
restitution, and it is ordered that the interest requirement
Payment shall be applied in the following order: One, to the
assessment; and two, to the restitution. Payment of the total
fine and other criminal monetary penalties shall be due in
full immediately. Any amount the defendant is unable to pay
now is due and payable during the term of incarceration. Upon
release from incarceration, any remaining balance shall be
paid in monthly installments to be initially determined in
amount by the supervising officer. Said payments are to be
made during the period of supervised release, subject always
to review by the sentencing judge on request by either the
defendant or the government.
Id. 211:10-212:4. These orders are reflected in the
judgment the Court issued following the imposition of
sentence. J. at 5-6.
THE MOTION AND RESPONSE
James Stile's Motion
28, 2017, Mr. Stile filed a motion for this Court to set his
restitution amount. Mot. for Sentencing Ct. to Set
Restitution Payment Amount (ECF No. 651) (Def.'s
Mot.). Mr. Stile contends that he is being
“punished by the Federal Bureau of Prisons for his
failure to meet a payment schedule amount that is
unreasonable and impossible for the Defendant to meet.”
Id. at 1. He states that on July 13, 2015, he was
“compelled to sign a ‘Inmate Financial
Plan”, which was “a coercive instrument
that[']s designed to threaten the inmate into a payment
plan regardless if he or she can comply or not.”
Id. at 2. Mr. Stile writes that on June 21, 2017,
the Bureau of Prisons (BOP) “presented to the Defendant
a notice that due to an inability to pay the minimum payment
established by the [BOP] and not the Court ($25.00 14
'ly) the Defendant was being placed on FRP Refuse
status.” Id. He complains that BOP has
sanctioned him in various ways for his refusal to participate
in the payment program. Id. at 3.
Stile claims that the Court “should have investigated
the Defendant[']s financial circumstances at time of or
prior to sentencing and should have set a payment schedule
that the Court determined the Defendant could comply with and
not delegated to [BOP] to do such as was done.”
Id. at 4.
Ward v. Chavez, 678 F.3d 1042 (9th Cir. 2012) and
United States v. Leftwich, 628 F.3d 665 (4th Cir.
2010), Mr. Stile argues that the BOP “lacked authority
to collect restitution payments from inmate”, the
restitution order was not valid “because order was
issued without regard to inmate's financial
circumstances”, and the Court failed “to specify
it was imposing restitution under [the Victim and Witness
Protection Act] Title 18 U.S.C. § 3663 or the [Mandatory
Victims Restitution Act] 18 U.S.C. § 3663A.”
Id. at 5.
United States v. Gunning, 339 F.3d 948, 949 (9th
Cir. 2003), United States v. Gunning II, 401 F.3d
1145, 1149 (9th Cir. 2005), United States v. Merric,
166 F.3d 406 (1st Cir. 1999), and United States v.
Corley, 500 F.3d 210 (3rd Cir. 2007), Mr. Stile asserts
that “where a defendant has insufficient financial
resources to make immediate payment, a District Court - - not
BOP, not U.S. Probation Office - - must set a repayment
schedule in the judgment of the conviction in order to
discharge its responsibilities under MVRA of 1996.”
Id. Mr. Stile says that the Court “failed in
all respects in its Judgment that, ‘any amount
Defendant is unable to pay now is due and payable during the
term of incarceration.'” Id. at 5-6.
United States v. Mitchell, 893 F.2d 935 (8th Cir.
1989) and United States v. Bailey, 975 F.2d 1028
(4th Cir. 1992), Mr. Stile asserts that these courts hold
that a district court abuses “its discretion in
ordering restitution without an informed determination of
Defendant's ability to pay.” Id. at 6. Mr.
Stile insists that he has no financial ability to pay while
he is incarcerated. Id. He relates that while
incarcerated, everything he owned was stolen and that the
town of Sangerville foreclosed on his real estate for only
$989 in back taxes. Id. at 6-7. In short, he was
“robbed of all that he owned.” Id. at 7.
He complains that because of the Court's “failure
to set a payment schedule after a fair assessment of the
Defendant[']s assets, which none exists, [he] now is
going to be subject to the sanction of leaving prison without
a dollar in his pocket . . . .” Id.
Stile next objects to the Court's failure to give any
consideration “to the possibility that the fruits of
the crime were insured and a third party insurance company
reimbursed the victim minus a deduct[i]ble like in the range
of $200.00 to $500.00 . . . .” Id. at 7. Mr.
Stile implies that he would not be required to pay
restitution to the insurance company because it is not a
direct loss to the victim. Id.
Mr. Stile informs the Court about “its Article III
responsibilities, which also entail setting a payment
schedule of restitution realistically based upon what the
Defendant can afford.” Id.
Stile asks the Court to order the Government to determine
whether there were any third-party insurance payments to the
victim and, if so, to adjust the restitution accordingly.
Id. He requests the Court to set his payment amount
and to suspend his current obligation to pay while
The Government's Response
Government objects to Mr. Stile's motion. First, it
points out that in the initial and amended plea agreements in
this case, Mr. Stile expressly agreed that “[i]n
addition to the other penalties provided by law, the Court
must also order Defendant to pay restitution to the victim or
victims of the offense pursuant to 18 U.S.C. § 3663 or
§ 3663A.” Opp'n by U.S. of Am. in Resp. to
Def.'s Mot. Concerning Payment of Restitution at 1-2
(ECF No. 663) (citing ECF No. 540 at 2, and ECF No. 543 at 2)
(Gov't's Opp'n). Furthermore, the
Government observes that Mr. Stile withdrew his objection to
the restitution amount of $13, 306.93 before his sentencing
hearing. Id. at 2. In addition, the Government
states that even though Mr. Stile's sentencing hearing
was lengthy, neither he nor his counsel objected to the
restitution amount at the time of his sentencing hearing.
Id. at 2-3. The Government also says that contrary
to Mr. Stile's assertions, the Court did consider his
financial circumstances at the time of his sentencing.
Id. at 9.
Government recites Mr. Stile's payment history while in
prison, noting that he initially voluntarily participated in
the Inmate Financial Responsibility Program (IFRP) of the
BOP, agreeing to make $25 payments each quarter toward his
$100 special assessment and his $13, 306.93 restitution
obligation. Id. at 5. The Government reports that
Mr. Stile actually made four $25 payments, after missing one
payment, and thereby paid off his $100 special assessment.
Id. Mr. Stile made only one more $25 payment, which
went toward restitution, leaving $13, 281.93 outstanding on
his restitution obligation. Id. He then was placed
in “Refuse Status.” Id. at 6.
Government also states that even though Mr. Stile had only
$2.46 in his prisoner account when he filed his motion, on
July 31, 2017, $200 was deposited into his account, and by
August 14, 2017, he had withdrawn $120 from his account for
telephone and other costs, leaving a balance of $82.71, which
should have been available for restitution. Id.
Government disputes Mr. Stile's reading of the applicable
law. Observing that the Court ordered Mr. Stile to pay the
full amount of the restitution immediately, the Government
cites Bramson v. Winn, 136 Fed.Appx. 380, 381 (1st
Cir. 2005) among other cases for the proposition that when
the trial court orders the payment due immediately, there is
no improper delegation when the BOP uses the IFRP to collect
court-ordered payments. Id. at 7. Also, the
Government contends that if Mr. Stile wishes to challenge the
conditions of his incarceration brought about by the
restrictions imposed due to his failure to comply with the
IFRP, he must bring a habeas corpus petition in the district
where he is housed, not in Maine. Id. at 8. The
Government also argues that if the Court could reassess Mr.
Stile's financial circumstances under 18 U.S.C. §
3664(k), he would have the burden of demonstrating a material
change in his financial circumstances, and it contends that
he has failed to do so. Id. at 9-11.
the Government informed the Court that E.W. Moore has in fact
been reimbursed for $12, 306.91 under its insurance policy
with Hanover Insurance Company. Id. at 11-13.
Accordingly, the Government requests that the restitution
order be amended to reflect the fact that E.W. Moore
sustained a direct loss of $1, 000.02 and that Hanover
Insurance Company as E.W. Moore's insurer paid $12,
306.91, placing E.W. Moore first in terms of priority and
Hanover second. Id.