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United States v. Dunston

United States District Court, D. Maine

August 28, 2018

UNITED STATES OF AMERICA
v.
JOSHUA DUNSTON

          ORDER ON MOTION TO AMEND JUDGMENT TO WAIVE RESTITUTION

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Based 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 motion.

         I. BACKGROUND

         On 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).[1] 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.

         On July 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.

         On July 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. Id.

         II. DISCUSSION

         Mr. 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.

         The 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:

         (4) Order mandatory.

         (A) The issuance of a restitution order under this section is mandatory.

         (B) a court may not decline to issue an order under this ...


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