United States District Court, D. Maine
ORDER ON MOTION TO AMEND JUDGMENT TO WAIVE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
on asserted financial hardship, the Defendant moves to amend
the judgment in this child pornography possession case to
eliminate the restitution requirement. The Court concludes
that the statute mandates restitution and forbids a court
from considering a defendant's economic circumstances in
issuing the restitution order. The Court therefore denies the
March 28, 2016, this Court sentenced Joshua Dunston to 121
months of incarceration, no fine, supervised release for
life, a $100 special assessment, and $13, 000 in restitution
for his possession of child pornography depicting a minor
under the age of twelve, a violation of 18 U.S.C. §
2252A(a)(5)(B). J. (ECF No. 19). Specifically,
the Court ordered Mr. Dunston to pay restitution in the
following amounts to the following victims: (1) $3, 500 to
“Cindy” at her lawyer's address in Peoria,
Illinois, (2) $5, 000 to “Sara/Marineland” at her
lawyer's address in Seattle, Washington, (3) $1, 500 to
“Eight Kids” (John Doe 4) at his lawyer's
office in Tacoma, Washington, and (4) $3, 000 to
“Sponge Bob/Andy” at his lawyer's office in
Salt Lake City, Utah. Id. at 7. Mr. Dunston did not
appeal the sentence and the judgment is final.
5, 2018, Mr. Dunston wrote the Court stating that he has
“fines and restitution” that he is “unable
to make payments on.” Pro Se Mot. to Amend J.
(ECF No. 24). He states that he gets “between $5.25 to
$23 per month” and he complains that the Bureau of
Prisons has placed him into “refusal status, making my
pay $5.25 no matter what till I pay my fine and
[restitution].” Id. He also says that these
payments will be a “major financial burden” upon
his release. Id. He asks the Court to waive the
restitution obligation. Id.
9, 2018, the Government responded, objecting to Mr.
Dunston's motion. Gov't's Resp. in Opp'n
to Def.'s Mot. to Amend J. (ECF No. 25). The
Government pointed out that not only is restitution
mandatory, but it also must be awarded without any
consideration of a defendant's specific economic
circumstances. Id. at 1. Also, the Government said
that whatever impact the restitution obligation may have on
Mr. Dunston's post-incarceration finances would be better
addressed at that time by the supervising officer.
Dunston is not claiming that the four victims listed in the
judgment are not proper victims under the law. Nor is he
asserting that the restitution amounts the Court ordered are
excessive. Instead, he is claiming that his economic
circumstances, while incarcerated and when released, will not
allow him to comply with the restitution order, that he is
currently suffering adverse consequences from his inability
to pay restitution while in prison, and that he fears he will
suffer adverse economic consequences upon release.
statute under which the Court ordered restitution is
entitled, “Mandatory Restitution.” 18 U.S.C.
§ 2259. Subsection (a) reads:
Notwithstanding section 3363 or 3363A, and in addition to any
other civil or criminal penalty authorized by law, the court
shall order restitution for any offense under this chapter.
18 U.S.C. § 2259(a). The statute further provides:
issuance of a restitution order under this section is
court may not decline to issue an order under this ...