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United States v. Pedreira

United States District Court, D. Maine

November 22, 2017

UNITED STATES OF AMERICA
v.
ROBERT J. PEDREIRA, SR., Defendant

          RECOMMENDED DECISION ON MOTION TO MODIFY RESTITUTION SENTENCE OR ADJUST PAYMENT SCHEDULE

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE .

         Defendant Robert J. Pedreira, Sr., moves to modify the restitution portion of his sentence and/or to adjust the payment schedule. (Motion, ECF No. 63.) Following a review of Defendant's motion, I recommend the Court deny the motion.

         I. Factual Background and Procedural History

         Defendant was convicted in 2006 of seven counts of making a false, fictitious or fraudulent income tax return claim, 18 U.S.C. §§ 287 & 2. (Judgment, ECF No. 18 at 1-2.) The Court sentenced Defendant to concurrent prison terms of 48 months on each of the counts (also concurrent with a state court sentence), to be followed by concurrent terms of three years of supervised release. (Id. at 3-4.) In addition, the Court imposed criminal monetary penalties consisting of a $700.00 assessment and $12, 403.58 in restitution. (Id. at 6.) The schedule of payments set forth in the judgment provided that penalties were due “[i]n full immediately, ” with the balance due as follows:

Any amount that 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. at 7.)

         In March 2017, the Court found Defendant guilty of having violated, for a period ending in 2009, two of the standard conditions and two of the special conditions of his supervised release. (Revocation Judgment, ECF No. 43 at 1-2.) Defendant was sentenced to a prison term of 24 months. (Id. at 3.) The schedule of payments set forth in the revocation judgment provides that a lump sum payment of $13, 103.58 was due immediately, with the balance due in the same manner as provided in the initial judgment. (Revocation Judgment at 5.)

         Defendant appealed from the revocation judgment, but he later voluntarily dismissed the appeal. (Notice of Appeal, ECF No. 48; First Circuit Judgment, ECF No. 60 (docketed in First Circuit at United States v. Pedreira, Nos. 17-1277, 17-1308 (1st Cir. May 9, 2017).)[1]

         In Defendant's motion in this Court, he asserts he has requested administrative relief from the manner in which the Bureau of Prisons has executed the restitution order; he also asserts that, as of November 1, 2017, he had not received notice of a decision in the administrative proceeding. (Motion, ECF No. 63.)

         II. Discussion

         In his motion, Defendant arguably seeks two forms of relief: a modification of the sentence, and/or an adjustment to the payment schedule.[2] Defendant's revocation judgment became final following his voluntary dismissal of the appeal. See 18 U.S.C. § 3664(o); United States v. Pelletier, No. 1:06-cr-00058-JAW-01, 2017 WL 5162800, at *8-9, 2017 U.S. Dist. Lexis 184036, at *22-25 (D. Me. Nov. 7, 2017) (discussing section 3664(o)).[3] Defendant's restitution sentence may not be modified, because the revocation judgment is final, and Defendant has not asserted any facts that would satisfy any of the statutory bases for relief from or a modification of the judgment.[4]

         In addition, the “interests of justice” do not support an adjustment to the payment schedule, pursuant to 18 U.S.C. § 3664(k), because the motion does not assert “any material change in the defendant's economic circumstances that might affect the defendant's ability to pay restitution.”[5] Defendant asserts he earns approximately twenty dollars per month through prison employment. (Motion, ECF No. 63.) He states his counselor wants him to save eight dollars per month in order to pay twenty-five dollars per quarter. (Id.) In short, Defendant's assertions do not constitute a material change of economic circumstances, and therefore there is no basis for an adjustment to the payment schedule. See § 3664(k); United States v. Chan, 298 F. App'x 634, 635 (9th Cir. 2008) (concluding that “[t]o the extent that Chan challenges her restitution payments based on her ability to pay, her contention is not ripe, ” and citing section 3664(k)).

         III. ...


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