United States District Court, D. Maine
RECOMMENDED DECISION ON MOTION TO MODIFY RESTITUTION
SENTENCE OR ADJUST PAYMENT SCHEDULE
C. NIVISON U.S. MAGISTRATE JUDGE .
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
Factual Background and Procedural History
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
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
(Id. at 7.)
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.)
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).)
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.)
motion, Defendant arguably seeks two forms of relief: a
modification of the sentence, and/or an adjustment to the
payment schedule. 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)). 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.
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.” 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)).