Ward v. Chavez, 2012 U.S. App. LEXIS 9316

Ward was sentenced in the Eastern District of California in 2002 to 300 months' imprisonment and 3 years' supervised release, plus restitution of $27,885 and a $1,000 Crime Victim Fund Assessment with the restitution due immediately.
Ward paid restitution during incarceration through the IFRP-like process via Unicor wages, with portions deducted and applied to restitution.
Ward challenged in California courts the immediate restitution payment order, arguing it impermissibly delegated schedule-setting to the BOP; those orders were vacated and reconsidered for lack of jurisdiction.
Ward then filed a §2241 habeas petition in the District of Arizona, arguing the BOP had no lawful restitution order to collect while incarcerated and should be on no-obligation status.
The district court in Arizona concluded Ward had not exhausted administrative remedies (PLRA) but addressed the merits, finding no delegation and noting Ward could voluntarily participate in IFRP.
This Ninth Circuit decision reverses the district court, holding that a district court must set a restitution payment schedule in consideration of the defendant’s financial resources; an order for immediate payment that leaves details to the BOP is an unlawful delegation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether exhaustion should be waived due to official BOP policy	Ward argues exhaustion futile due to IFRP policy.	Government urges exhaustion requirements apply and can be waived only for futility under Fraley/Sours logic.	Exhaustion waived; futility established by IFRP policy.
Whether ordering immediate payment without a schedule constitutes impermissible delegation under MVRA	Ward contends the court delegated scheduling to BOP by ordering immediate payment.	Ward failed to show delegation; the order satisfied MVRA by specifying manner and immediacy.	Yes; immediate-payment order without a schedule constitutes impermissible delegation.
Whether the district court complied with MVRA by considering the defendant's financial resources when setting restitution	Ward argues the court did not properly consider his ability to pay.	Ward did not contest consideration on direct appeal; order presumed compliant and non-delegatory.	The court must consider financial resources; failure to set a proper schedule is unlawful.
Whether the California sentencing court delegated authority to the BOP	Ward contends delegation occurred via immediate payment with no schedule.	Ward’s order did not direct BOP to set a schedule; no delegation occurred.	The California order did not delegate authority to the BOP.

United States v. Gunning, 339 F.3d 948 (2003) (non-delegable MVRA scheduling; 'as directed by' language delegated to probation bad)
United States v. Gunning, 401 F.3d 1145 (2005) (reiterates non-delegation principle; IFRP context)
United States v. Lemoine, 546 F.3d 1042 (2008) (IFRP can operate independently; courts may not say BOP controls schedule)
United States v. Prouty, 303 F.3d 1249 (2002) (Prouty: delegation to probation improper when court fails to set schedule)
United States v. Kinlock, 174 F.3d 297 (1999) (district court must set schedule if restitution cannot be paid immediately)
United States v. McGlothlin, 249 F.3d 783 (2001) (Eighth Circuit on delegation concerns; restitution schedule must be set)
United States v. Sawyer, 521 F.3d 792 (2008) (some circuits view IFRP as separate; timing of payments emphasized)
United States v. Martin, 278 F.3d 988 (2002) (court may order immediate payment if financial resources suffice; considers resources)
United States v. Corley, 500 F.3d 210 (2007) (Third Circuit on immediate payment and IFRP; focus on delegation)
United States v. Merric, 166 F.3d 406 (1999) (First Circuit on MVRA scheduling considerations)
United States v. Davis, 306 F.3d 398 (2002) (Sixth Circuit MVRA scheduling relevance)
United States v. Overholt, 307 F.3d 1231 (2002) (Tenth Circuit discussion on scheduling and MVRA)