*1 on the causal focused 511, he could Veterans questions Vietnam by or, alleged in the relationship of the harm presumably, to have decided’ ‘deemed “average delay,” to the actual origi- complaint, in the implicitly (emphasis decided” at nal)). harm individuals. 599 F.3d suffered no The court concluded there was 661-62. majority’s holding of the upshot The standing. confer nexus sufficient to causal systemic claims of de- respect to the reasoning majority accepts this Id. The go place have no lay is that veterans further to conclude goes much majority may claims. The adjudicate such delay must remedy systemic claim to a any remedy an adequate that there is believe challenge a to individual be treated as delay by means of indi- for unreasonable determinations, hence reviewable benefits in the proceedings mandamus Court vidual Appeals of only the Veterans Court or the Federal Circuit Appeals of Veterans Circuit, condemning and thus vet- Federal administrative courts require the VA delays to suffer intolerable inherent erans 18, n. Op. at 1028 promptly. act more system. in the VA extraordinary an writ 1032. Yet such rarely granted. Erspamer v. Derwin- See majority’s holding thus reduces it- The (1990) ski, 3, (declining 9-11 Vet.App. challenge delays a 22”: To self to “Catch that a concluding even after issue writ you systemic system, bring in the must delay years ten for benefits was unrea- just an claim. claim and not individual sonable). binding The writ is not claim, it you bring systemic But if has to question, than the case in see case other you an individual claim and be treated as Editorial, Inc. v. States Dist. Star United delays system. in the Get must suffer the Cir.1993) (rea- Court, 7 F.3d it?
soning grant that whether to the writ is case), on the facts of the individual based pro- and thus would have no affect on the poten- apply cedures to the millions represented by tial claims these Plaintiffs. majority’s position appears to rest principally upon aspect another of the D.C. Veterans opinion
Circuit’s Vietnam WARD, Jack Richard Petitioner- in that case plaintiffs America. Appellant, appeals process framed their attack on the “average” delay, as an attack on rather CHAVEZ, Warden, Ricardo E. delay handling any par-
than on in the Respondent-Appellee. Am., ticular case. Vietnam Veterans of at The court held that 661-62. No. 09-17016. injury plaintiff since no could show Appeals, United States Court delay, the “average” plaintiffs caused Ninth Circuit. standing to assert the claim. Id. at lacked 662. The court did not discuss whether Argued and Jan. 2012. Submitted plaintiffs might past use evidence of 8,May Filed delay of a aggregate to demonstrate risk wrongful deprivation property Mathews,
future. See U.S. S.Ct. 893.
Douglas Maynard Erickson (argued), C. Reiter, P.L.C., Cronin Erickson Curran & Phoenix, AZ, petitioner-appellant. for the (argued), Karla Delord Hotis Dennis K. Burke, Howe, M. and Randall United Attorney’s States Office for the District of Arizona, Phoenix, AZ, respondent- for the appellee.
Before: J. CLIFFORD WALLACE and SMITH, JR., D. Judges, Circuit MILAN RAKOFF, and JED S. Senior District Judge.* RAKOFF; Opinion Judge JED S. by Judge Dissent WALLACE.
OPINION
RAKOFF, Judge: District Senior whether, The issue in this case is Act Mandatory Victims Restitution (“MVRA”), impermis- a district sibly delegates obligation to set resti- * Rakoff, York, sitting by designation. S. New Honorable Jed Senior District Judge for for the U.S. District Court Southern its order then concluded when orders The court
tution expectation with “immediate” of restitution “immediate” repayment (“BOP”) will Bureau Prisons the BOP the delegated to impermissibly out a work *3 repayment a obligation to set court’s to the Inmate Financial prisoner to and ordered the BOP cease (“IFRP”). Program We Responsibility money for collecting from Ward court has hold where a until the court issued new of restitution consider whether defendant failed to *2-4. After order. Id. at restitution pay restitu- the financial resources has reconsideration, Government moved immediate immediately, ordering tion however, concluded the district court to the BOP impermissibly delegates ment § 2255 nor neither because 28 U.S.C. obligation set a the court’s 3664(k) § a U.S.C. allows district schedule. order, on the a legality rule incarcerated in and because Ward was BACKGROUND Arizona, jurisdiction it lacked to issue its 9, 2002, Jack petitioner On December Order, accordingly and vacated the prior was in the East- Richard Ward sentenced Ward, Order. See United States No. District of California to 300 months’ ern 160690, AWI, 02-5231 2009 WL CR years’ supervised and 3 re- imprisonment (E.D.Cal. 2009) 22, *1-2 (noting Jan. being count lease after convicted of one 3664(k) change § allows court to district Robbery Armed and attempted Bank nine only based In addi- Robbery. counts of Armed Bank financial and changed citing circumstances term, prison to his Gross, 1043, States v. United $1,000 Ward court ordered Crime (9th Cir.2002)). $27,885 Fund Victim Assessment restitution to crime victims. The After the termination of his California Payments” portion “Schedule court proceeding, Ward initiated judgment stated that Crime proceeding pursuant this habeas to 28 Fund and restitution Victim Assessment Arizona, § 2241 in U.S.C. the District of “immediately.” and payable were due claiming: then Ward was sent for incarceration to The BOP lacks a lawful order of resti- the Federal Correctional Institution in from the tution district court accor- Arizona, Phoenix, voluntarily where he was the Mandatory dance with Victims Res- (the employed prison employ- Unicor 1996, Act of April titution collect system). ment See United States restitution from Petitioner during AWI, No. CR 02-5231 BOP, without his incarceration. The (E.D.Cal. 2008). at *1 Dec. In accor- restitution, order of cannot lawful force dance with practice, portions standard the Petitioner in the In- and ap- Ward’s Unicor was deducted Program mate Financial Responsibility plied obligation. to his restitution “no place and must Petitioner on obli- subsequently motions in Ward filed gation” status. California district court that sentenced argued Government Ward’s habe- him, requesting reduction deferral and/or petition as should because Ward be denied payments. in his restitution The Califor- rem- had not exhausted his administrative nia district court a mo- construed was vacate, edies and because his claim meritless. aside, tion to set or correct sen- argued that court should § under 28 tence U.S.C. petition amendments that motion. Id. at hear his *1-2. exercise discretion to any attempt because appeals exhaust admin- claim. Id. Ward to this Court istrative remedies would be from this decision. futile. Report Recommendation, In a DISCUSSION
magistrate judge recommended the dis- considering Before the merits of deny petition, trict court concluding petition, we first address the issue that Ward had not exhausted his adminis- matter, of exhaustion. prudential As a trative required by remedies as the Prison require courts petitioners habeas ex Act, Litigation Reform 42 U.S.C. judicial haust all available and administra 1997e(a). Chavez, See Ward v. No. *4 tive remedies seeking before relief under (DAriz. 2:09-cv-00246-GMS, Dkt. No. 11 INS, § 2241. Castro-Cortez v. 239 2009). F.3d 26, May court, The district after 1037, Cir.2001), 1047 abrogated on considering objections to the R & grounds, other Fernandez-Vargas v. Gon R and the responses, Government’s zales, 30, 2422, 548 U.S. 126 S.Ct. 165 R R in adopted part. & v. Ward (2006). L.Ed.2d 323 This exhaustion re Chavez, CV-09-00246-PHX-GMS, No. quirement subject § to waiver in (D.Ariz. 2241 2009). 27, 2009 Aug. WL 2753024 cases it “jurisdictional because is not a The district court agreed with Ward that prerequisite.” Typically, exhaustion the PLRA’s requirement exhaustion does can be waived “if pursuing those [adminis § apply 2241 petitions, habeas but trative] remedies would be futile.” Fraley judicially-created declined to waive the ex- Prisons, 924, U.S. Bureau 1 F.3d requirement haustion on the grounds of (9th Cir.1993). (“Petitioner futility. Id. at *2-4 has failed to show sufficient evidence that his exhaus- Here, only Ward step exhausted appeals process of the BOP would one of the three-step BOP administrative futile.”). have been remedy systеm: he filed a formal adminis Notwithstanding its refusal to waive the grievance Warden, trative with the which requirement, exhaustion the district court the Warden denied. § 28 C.F.R. 542.10 et then addressed the merits of Ward’s claim seq.1 argues, however, Ward ad and found it meritless for two reasons. appeal futile, ministrative would have been First, the court concluded that Ward was as the denial was based on an official being participate forced to in the policy of the BOP: the IFRP. See Sours IFRP, voluntary program is a Chavez, 2:08-cv-01903-SRB, No. Dkt. chose to participate Ward in and could exit (D. 22, slip No. op. 17, at *2-3 Ariz. June anytime. Second, at Id. at *5. 2009) court recommendation) (con (report and concluded that since the court cluding required exhaustion not where re not required had BOP set a sched- quest for relief denied based on official ule of payments, delegated it had not Chavez, policy), as cited in Sours v. authority to set a restitution schedule to CV08-1903-PHX-SRB, No. at BOP. Id. *6. Because the sentenc- 2714028, *1, at 2009 U.S. Dist. LEXIS
ing 76965, (DAriz. court neither directed the BOP to 2009). set 26, Aug. *2-3 Sours, schedule nor required case, Ward to petitioner like this involved a IFRP, the court concluded that the seeking to set aside a restitution order cases Ward relied on did not apply improperly delegated tо his scheduling au- Although dispute originally granted Ward does not that he cause the court appeal sought, withdrew his of the Warden's denial of prior him the relief he had to recon- grievance, sidering asserts that he did so be- its order. Sours, which, according to the restitu- 2:08-cv-
thority to the BOP. No. 3664(f)(2). 01903-SRB, 22, op. paid.” Dkt. at *1-2. tion is to be 18 U.S.C. slip No. the Sours court exhaustion, previously held that the district waiving We have Fraley, statutory responsibility which held to set the opinion our relied on futility petitioner’s schedule is “non-dele- there was where (Gun- Gunning United States v. on official BOP gable.” claim was denied based (9th Cir.2003); Fraley, I), ning peti- at 925. policy. F.3d Sours, II), (Gunning gone had Gunning States v. tioner in unlike United (9th Cir.2005). of BOP out of four levels through three “[T]he 401 F.3d Sours, 2:08-cv-01903-SRB, review, No. have the simply does not But it was op. at *3-4. slip Dkt. No. delegate scheduling its own authority to policy” the “official led office, the reliance on not to probation to the duties—not (and Fra- Sours finding futility Gunning BOP, anyone not to else.” ), ley and the Sours expressly noted II, at 1150. simply exhaustion
that the level
Sours’s
Here,
argues
more
petition was even
futile
showed his
delegated
authority to
impermissibly
*5
Fraley,
prisoner
gone
had
than
where
by ordering payment
in effect
of
the BOP
Sours,
through only one level of review.
“immediately”
specify-
restitution
without
2:08-cv-01903-SRB,
Dkt. No.
No.
him no
ing any payment
leaving
*3-4.
option
prison
but to
in a BOP
Because of the existence of official BOP
program
attempt
in order to
to com-
work
would be
policy
IFRP —exhaustion
good
(given
with the sentence in
faith
ply
—the
Fraley.
Sours
here,
it
in
and
futile
as was
sentence),
subjecting him
lengthy
his
thus
incorrectly
The district court
dismissed
I,
Gunning
the IFRP.
In
the district
value of the BOP’s return
probative
“immedi-
payable
court ordered restitution
collecting restitution from
after the
Ward
ately,”
any
unpaid
amount
after the
vacated,
juris-
for lack of
sentencing court
paid during
“to
defendant’s release
diction,
granted
its order that
relief.
Ward
by a
period
supervision
of
as directed
U.S.
2753024, at *3-4. The
probation officer.”
1049
setting
payment
payment
since
must set a “detailed
concluded
sched-
function,”
judicial
Likewise,
sentencing.”
a “core
a ule at
schedule is
the Sec-
“immediate”
ordering
ond Circuit in United States v. Kinlock
understanding
an informal
payment “with
rejected a
simply
restitution order that
set a repay
that the
office shall
probation
payment
ordered
“immediately,” holding
impermissibly delegated
ment schedule”
“[w]hen restitution cannot be
duty.
court’s
United States v.
immediately,
court must set
(11th
1249,
Prouty, 303 F.3d
1254-55
Cir. a
schedule of
terms of
Lemoine,
2002),
approval
cited with
546 incarceration, supervised release,
proba-
or
Circuit,
at 1048 n. 4. The Third
F.3d
Kinlock,
tion.” United States v.
174 F.3d
Prouty,
endorsing
posi
has also taken
(2d
297,
Cir.1999),
approval
301
cited with
simply
tion that the district court
Lemoine,
F.3d at
4.4
546
1048 n.
Addi-
payment
order immediate
First, Sixth,
tionally, the
and Tenth Cir-
expectation
with the
the BOP
Pro
albeit,
cuits
approach,
have endorsed this
the details
payment.
bation will set
See
Lemoine,
like
dicta or
factual circum-
210,
Corley,
v.
500 F.3d
225-
United States
entirely
stances not
similar to the instant
(3d Cir.2007),
27
vacated
remanded on
Metric,
case. See United States v.
166
303,
by 556
129
grounds
other
U.S.
S.Ct.
(1st
406,
Cir.1999);
F.3d
409
United States
(2009),
1558,
L.Ed.2d 443
cited with
Davis,
(6th
Cir.2002);
306 F.3d
Lemoine,
approval in
other the court the defendant’s circumstances. sibility ordering that (emphasis supplied). § It 18 U.S.C. immediately, resti- and that should be sentencing order is here that unlawful. But where tution is not order court sub- sentencing failed—as the itself re- financial has insufficient the defendant set- sequently acknowledged by simply — repayment, to make immediate sources payment leaving and ting “immediate” BOP, not Probation— court—not the BOP to “work out the details.” Unit- in the repayment schedule must set Ward, 5220959,at *3. ed States v. 2008 WL to dis- conviction judgment of lawful, For restitution order be responsibilities under charge therefore, requires § that the district MVRA. set in consideration of the court a schedule Further, not even where the court has financial resources. If the defendant’s posi- the defendant’s financial considered court financial considers defendant’s pay- simply tion orders “immediate” periodic pay- that resources and concludes ment, that expectation has been “[t]he “in the ments are unwarranted interest BOP Probation will work out and/or lawful, justice,” the order is as we conclud- payment.” United States details If, however, ed in Martin. Ward, AWI, 2008 WL No. CR 02-5231 immediate orders simply repayment court *3; Prouty, see also agency, it to another like the leaves repayment at 1254-55 immediate (holding BOP, actually payment set the This implicitly delegates authority). such obligates de- that statute court to MVRA, di- is insufficient under the which termine, unlawful, that order as the is ... rects that the district court “shall duty has district court abdicated ... specify restitution order “in set the schedule consideration of’ the the restitu- according which[ ] financial circumstances of defendant. of’ the paid, tion is to be in consideration argues that the record does dissent financial defendant’s circumstances. that the court demonstrate 3664(f)(2). § U.S.C. “immedi- Ordering failed to consider financial circum- payment ate” when the ordering ap- stances in that restitution of it is possible does not know whether $29,000 proximately paid immediately. payment defendant make immediate Here, disagree. Dissent at 1055-56. We leaving and instead it to the to “work BOP acknowledged out the details” “specify” does (and in Ward’s case others before schedule of “in of’ consideration court), it had ordered immediate the defendant’s financial circumstances. restitution, expectation true, notes, It is as the dissent pay- “work out the details op- 3572 the default U.S.C. ment.” States v. United repay- for restitution immediate 5220959, at *3. The court concluded ment, orders periodic unless cases Lem- Gunning justice.” “the ment in interest Dissent *9 practice” constituted an oine “usual 1054-55; Martin, at see 278 at 1006 F.3d the impermissible delegation to BOP. Id. rule”). (describing “general it as the But The court then ordered the BOP to cease by section 3572 is modified here section *4, collecting payments, restitution id. at 3664, applies sрecifically which to a manda- vacating before that order lack of later for tory the imposed restitution order jurisdiction. 2009 MVRA, United States and which mandates that the dis- clear the specify trict the in WL 160690. We think it is court
1051 acknowledged it set the the district court had “work out details.” The BOP may sanctions, “immediate re move payment” order of without or it instead schedule, financial circum set an gard to the defendant’s choose to informal holding stances, it left to the BOP take the threat of sanctions over the defendant. into power gives those circumstances account That enforce the BOP the the It “working] appears power out details.” to dictate the terms the defen- sentencing to read the us unreasonable dant’s the restitution order. It yet conclude, opinion, expressly contrary the is to the MVRA’s di- does, sentencing “shall,” whether dissent the rection that the district court conviction, court the financial the set judgment considered defendant’s the record, is not in circumstances and ment schedule “in of’ consideration that the district court set further “assume” defendant’s financial to sim- circumstances $29,000 paying ply immediate payment. order immediate See also ly “in of’ financial Corley, considerаtion 500 F.3d at (comparing MVRA 1054-55, Dissent at 1055— predecessor, circumstances. with its Victim Wit- 56; Adams, Trigueros 1982, see also ness Protection Act of and noting (9th Cir.2011) 983, judicial VWPA, (taking no unlike the the MVRA re- tice of court were quires state documents that specify “directly petition payment related” to the judgment). habeas schedule in the As presented (quoting United States ex rel. our explained, sister circuits have im- this delegation plicit Robinson Rancheria Citizens Council v. of authority is “indistin- Borneo, Inc., 244, guishable” Cir. from an explicit directing order 1992))).5 to set the schedule. Id. at 226- 1255). Prouty, 27 (citing 303 F.3d at argues
The dissent also is not a “delegation” sentencing Accordingly, court’s re- because set a sponsibility to since the court in Ward’s case did not set forth a judicial impri- Government does not have proper payment schedule in the restitution order, matur to set a schedule that unlawful, that order is and the BOP enforce, required in- but must lacks the therefore collect res- stead move for sanctions when defen- payments through titution See, Smith, dant by failing e.g., defaults to make immediate IFRP. Ybarra v. No. (JRI), of the entire restitution amount. CV-09-1447-PHX-DGC 1056-57,1060-61; *2, Dissent at see Saw- also Dist. U.S. LEXIS (D.Ariz. yer, 20, 2010) 794-96. But F.3d at that a sched- at *5-6 Dec. (“Without ule legally binding order, set the BOP is not a proper the BOP does under the MVRA does not address the the authority require a sched- failure district court’s to fulfill MVRA ule of restitution collected while obligations by leaving it to the BOP to is participating Petitioner in the IFRP.” argues 5. The approach dissent also that the issue of with MVRA. The dissent’s what the is not considered considering whether restitution us, properly before and has been waived complied only some of the MVRA's re- petitioner. Dissent at 1052-54. We dis- quirements, specifying such as the manner of agree. petition argues does the BOP others, payment, see Dissent at but not gives not have a lawful order that such as whether the court set a collect restitution from the payment schedule in consideration of the de- petitioner. Whether the order is position, fendant’s financial to us in- seems depends lawful on whether or not sen- *10 3664(0(2). consistent. U.S.C. tencing complied that issued the order Furthermore, to did not either argue citation he (internal marks and quotation sentenc- the district court or to us that the omitted)).6 consider his financial ing court failed to CONCLUSION condition. sum, sentencing court that a find we waiver, and with- Despite Ward’s double re- financial consider the defendant’s must record, majority evidentiary an out payment setting a restitution sources fact, finds, judge as a matter of that the to schеdule, and, is unable if the defendant in the Eastern Dis- who sentenced Ward can- immediately, the court to of California failed consider trict repayment “immediate” simply ability to factors relevant to Ward’s payment the actual leave the details of and majority’s disagree I with the restitution. Apply- to the BOP Probation. re- finding, improper factual which is on case, that to this we find ing that standard petition view of a denial of a for habeas against petitioner the restitution order filed in the District of Arizona. corpus delegates to the BOP impermissibly Furthermore, assuming that the sen- even to obligation payment court’s set tencing court did fail to consider those therefore, that the BOP and factors, majority’s I with the er- disagree lacks the to collect restitution that legal roneous conclusion such error According- payments petitioner. from delegated court’s somehow ruling the district court’s ly, we reverse (BOP). authority to the Bureau of Prisons fur- remand to the district court for and reasons, join all of For these I cannot opin- proceedings consistent with this ther majority nothing There is opinion. ion. that delegates the restitution order to REMANDED.
REVERSED to BOP the Therefore, I set a schedule. WALLACE, Judge, Circuit Senior I would affirm the Arizona district court. dissenting: dissent. that majority holds a district court I. authority to impermissibly delegates its the Manda- set schedule under argue Ward did not the court (MVRA) if it tory (the Victims Restitution Act appeal which this comes us District Arizona) consid- orders immediate without for the District of or to us Court ering the defendant’s financial condition. that the who him the judge sentenced majority In so volunteered holding, has Eastern District of California entered considering us. to address an issue which is not before restitution order without first had, to raise financial Even if he we failing Ward waived that issue his condition. him to required it in a direct from his sentence. would demonstrate appeal Cain, jection argues petitioner has waived. See Trest v. The dissent because been 87, 89, directly appeal U.S. S.Ct. 139 L.Ed.2d failed his sentence (1997) challenge (holding legality procedural default is a restitution order raise, right obligated appeal, has is is waived his defense state assert, jurisdic- argument waived make the BOP lacks failure and is —that ability requirement that must considered because tional collect Rison, through sponte); sua Francis v. restitution order unlawful— (9th Cir.1990) (holding petition. at 1052-53. the Government section 2241 Dissent however, Government, procedural never raised this waived default defense raise, objection appel- despite as- at either the district court or failed Government’s level, argument). serting procedural late court such ob- failure to exhaust
1053 again a claim decides that after why we should consider such issue Ward waived when normally from it on this appeal appeal. it not raised on direct We do not was consider that were presented court. In Stone v. Pow- issues not California district See, ell, e.g., the trial court. Raich Gon- Supreme explained: Court (9th zales, 850, Cir.2007) (“It 500 F.3d 868 corpus The writ of habeas its feder- is a long-standing rule in the Ninth Circuit 2255, al will not counterpart, U.S.C. that, generally, ‘we will not consider argu- an appeal. to do service for allowed ments that raised for first are time on reason, For nonconstitutional claims ” Marsh, appeal.’ (quoting Smith v. appeal, that have been raised on could (9th 1045, Cir.1999))). That rule not, may but were not be asserted in compounded by our ordinary practice of proceedings. collateral Even those non- refusing to consider issues that are not constitutional claims that could not have See, opening raised in the e.g., brief. appeal been on direct can be asserted Ullah, 509, United States only if raised on collateral review (‘We Cir.1992) will ordinarily not con- alleged error constituted a fundamental appeal sider on are spe- matters that not inherently in a defect which results com- cifically distinctly argued appel- plete miscarriage justice. (internal opening quotation lant’s brief.” 477 n. 428 U.S. S.Ct. omitted)). marks While those rules are (1976) (internal citations and L.Ed.2d 1067 subject exceptions, to certain I am not omitted). punctuation aware of any that considers issues A sentencing claim that California reply that were not even raised brief statutory court failed to consider factors (at or opportunity) the last at oral argu- certainly available would have been to ment. process. his direct during Ward review If fact, question the first put Ward’s made, misapplica- a mistake had been such argument Judge counsel at oral (by Ra- tion of the statute could have been made koff) was, was: “On the factual question, due did not to error that constitute con- exhaustion, and I’m not sure this relates to Therefore, stitutional if violation. Ward any but finding was there indication petition had claimed in his habeas cor- he couldn’t this money immediate- pus California judge ly actually if he had been forced to do factors, statutory failed to consider responded: that?” Judge, Counsel “Well likеly Arizona district court you’re asking what about is an issue that waived, as likely denied the claim and we court, original relates to trial trial would have affirmed that decision. court’s, I findings. did not have that rec- however, did not that claim. make ord me available to and do not know the I it, reject The Arizona court did not have to question.” answer to that Counsel went rejection. and we do not have to affirm the on speculate, Instead, treat that we can claim same appears It to me from if way Ward has treated it: it does not judge order that the trial did consid- however, majority, digs exist. The because, course, question, er that he’s sponte, claim up despite sua its obvious required to take into account a number waiver. factors, one, including those there’s no reference in
II. anything order or else in the record for only majority Not does the decide an this case that I’ve seen that would indi- raising judge issue that waived it on cate that trial that. did You court, know, things appeal direct the California based some other we *12 immediately monly Ward, imposed I think un- restitution due it’s know about Mr. Pro- with the that BOP expectation he restitu- likely going that was and/or out details of bation would work the of— tion award the amount 02- ment. No. CR Unitеd States every- “I think interjected, Rakoff Judge AWI, at *3 I agree unlikely that it’s but one 2008). (E.D.Cal. judge Dec. But the anything if there was just wondered case, did not declare in Ward’s he responded, “Not that.” record on Counsel infor- presentence report no received knowledge, your honor.” my relating mation to his financial condition or just fail to raise an Thus, not Ward did ignored that such information. As sentencing that the California argument argument, Ward’s counsel conceded at oral statutory the fac- court did not consider not part that information is record tors; attorney expressly declined on the before us. appeal argument. that counsel was make While often We are a court review. We those speculate on how factors willing findings review of fact made lower weighed, he conceded that the might have courts, job it is not our to find but appeal which from the upon record Ward’s majority’s facts ourselves. The decision to not Arizona court based did include was issue, plow ahead with waived information. that record, concededly face of a insufficient is Nevertheless, of the spite lack of unprecedented. as it is unwise Because record, finds, evidentiary majority as a question sentencing оf whether fact, “it is clear matter of that that court in factors rele California considered it had acknowledged set the vant to financial condition is not payment’ of ‘immediate without re- us, before I would assume that the sen financial gard to the circum- defendant’s tencing judge provided was with informa majority The Op. at 1050-51. stances.” regarding those factors and consid judicial finding by taking makes this notice Martin, ered it. United States v. Cf. sentencing of statements the California (9th Cir.2002) (district (vacated in an order judge reconsidera- ordering did err in immediate jurisdiction) granting tion for lack of a of 4.5 million dollars restitution when judgment. Op. to set at motion aside the court “had before it information re request judicial 1050-51. Ward did not garding Defendant’s financial resources notice of the California it presumably that considered found judicial if vacated order. But even notice periodic pay insufficient to warrant ments”). I proper, judge’s were do not believe Employing assumption, that I in that order conclusive. The question statements that actu would decide Ward sentencing judge raised, that ally attempt stated courts and not to circumvent process.1 appellate Eastern District of California eom- our normal had majority considering only right argue 1. The me of waived his in a section 2241 accuses requirements MVRA's, some of the but petition ability "that the BOP lacks the Op. my But that others. 1051 n. 5. is not collect because the resti- ignoring requirements position. I am not Op. unlawful.” at 1052 n. tution order is simply assuming the MVRA. I am again, my argument. My But is not requirements those which Ward never chal- right position that Ward to ar- waived his concedes, lenged were Ward satisfied. As gue that the court failed to consid- corpus petition record on this habeas is silent majority’s as- er his condition. The financial as to whether failed government it is the that waived sertion that satisfy requirements. majority those also arguments objection are nowhere position attributes to me Ward (2) permits [the
III. If restitution order] payment, other than immediate actually raised question *13 of length pay- time over which scheduled consider is whether the one we must by will be made be ments shall set del- improperly California court, but shall be the shortest time in impose egated to the to full payment reasonably can which be I do not payment dispute a schedule. made. delegate a district court’s attempt to 3572(d). § Finally, U.S.C. U.S.C. is im- responsibilities under the MVRA 3664(f)(3)provides: § Cali- proper. question is whether the (A) may A restitution order direct the did actually forniа order so. district court’s single, lump-sum to make a defendant simple. question is It answer to that partial payment, payments specified did not. intervals, payments, in-kind or a combi- requires courts The MVRA payments of at specified nation intervals certain convicted of order defendants payments. and in-kind pay crimes to restitution victims. (B) A may restitution order direct the provides: § It U.S.C. 3663A. periodic defendant to make nominal of Upon determination of the amount if the court ments finds from facts on victim, to each restitution owed the record the economic circum- shall, to section of the stances defendant do allow the restitution the man- specify order any of a payment amount restitution which, according ner schedule order, and payment do not allow for the which, restitution is paid, to be full of the amount of a restitution order consideration of— foreseeable under any future rea- (A) other the financial resources and payments. sonable schedule of defendant, including assets of the wheth- added). Thus, (emphasis the MVRA re- jointly er assets are con- these quires the district court to consider factors trolled; ability relevant to the to pay defendant’s (B) earnings in- projected and other and to in its state order how and when defendant; come of the should paid. restitution be Section (C) obligations the de- any financial 3664(f)(2). (in But the of how decision fendant; including depen- obligations to kind) (immediately, cash or in and when on dents. intervals) certain, specified a date or at 3664(f)(2). 3572, in § 18 U.S.C. Section should restitution be is committed to turn, provides: the district court’s discretion. Section (1) A ... person sentenced to 3664(f)(3). The presumptive method for payment restitution ... shall make such payment is in presumptive cash and the unless, in immediately,- the interest of for schedule is immediate. Sec- justice, provides 3664(f)(2) the court for 3572(d)). (incorporating a or in If date certain installments. The statute does not require court to in in- provides the court for in the order explain adopt- its reasons stallments, of, for, the installments shall be ing particular manner or equal period addition, monthly over the payment. since the default court, provided by the court payment, unless rule is to order immediate schedule. bears the of demonstrat- establishes another defendant burden ironic, say record to be found in the least. Lan- justice Dictionary English national
ing that
interests
(1986).
establishing an installment
Similarly,
guage Unabridged
served
in full
delaying payment
Dictionary states,
“[a]s
Blaсk’s Law
until date certain.
verb,
au-
[“delegate”] means to transfer
another;
face,
thority
person
order satis-
one
the restitution
On
By ordering Ward
perform
the MVRA.
a task in behalf
empower
fies
one to
immediately, the
another,
delegate
e.g.,
a landlord
“specified]
rents.”
Law
agent
collect
Black’s
which, and the schedule
*14
manner in
the
1990). Thus,
Dictionary
ed.
a
Ward’s restitution was
according to which”
delegates
gives
if it
authority
its
court
3664(f)(2).
U.S.C.
paid.
to be
See
body authority
perform
another
to
some
words,
to
the court ordered Ward
other
that is
to
task
committed
the court. Un-
(i.e.,
particular
in a
manner
pay restitution
im-
precedents,
sentencing
a
court
der our
cash),
a
according
particular
in
to
im-
authority
to
permissibly delegates
the
(i.e., immediately). Because
schedule
a
if it
pose
payment
schedule
require
speci-
the
to
statute does not
court
a
requires
pay-
to
to a
defendant
submit
ordering
reasons
a
fy in the order its
for
imposed by
body.
another
ment schedule
payment
particu-
of
or a
particular manner
(Gunning
Gunning
See United States v.
schedule, we cannot tell from
lar
(9th Cir.2003) (con-
I),
the
sentenc-
the order whether
California
struing order
defendant
restitu-
pay
that
responsibility
to cоn-
ing court satisfied
by
“as
a U.S.
offi-
probation
directed
relating to Ward’s financial
sider factors
probation
to the
assigning
cer” as
office
argue
does not
that
condition. Since Ward
subsequent payment);
full control of
Unit-
urged
sentencing
impose
court to
he
the
II),
Gunning
(Gunning
ed States
of
an installment
the interests
(9th Cir.2005)
(construing
failed
justice
or that the
pay
that
while
order
defendant
fi-
relating
factors
to his
to consider the
imprisoned through the
Inmate Fi-
BOP’s
condition,
properly
we can
assume
nancial
Responsibility Program
a
nancial
dele-
the
consider
did
result,
the
gation
scheduling authority).
those factors. The
based on
us,
com-
record before
is
the order
order
re-
Ward’s restitution
does not
statutory
plies
requirements.
with the
him
quire
pay any remaining
to
balance
This,
course,
Arizona
assumes that the
“as directed
the
to
by
“pursuant
BOP” or
district court can even reach the California
merely
pay
the IFRP.” It
to
orders Ward
ha-
district court issue based on collateral
immediately.
full
restitution amount
corpus jurisdiction.
beas
order
simply
provide
does
for
Furthermore,
regardless
of whether
possibility
might
pay
Ward
all
the court
the factors it was
considered
full restitution amount as ordered. There
consider,
bound to
the restitution ordеr
nothing
purports
in the order that
to
judicial
delegate
authority
does not
require
to submit
to a
Ward
impose
schedule to the BOP
body
imposed by
other than the
anyone
Dictionary de-
else. Webster’s
court.
“delegate”
fines
verb form of
word
When Ward failed to
the full restitu-
TRANSFER,
as “to
another:
entrust
immediately
by
tion amount
as ordered
ASSIGN,
<
power delegated
COMMIT
court,
obligation.
he defaulted
his
may
people
legislature>
to the
cone
Thereafter,
exchange
privi-
[delegate]
authority
certain
competent
one’s
to a
assistant;».”
voluntarily
Inter-
he
leges,
agreed
Third New
to make
Webster’s
obligation
again
his
ac-
trict court had
ments toward
defaulted
ordered restitution
BOP,
immediately,
cording
payable
a schedule offered
Inmate Financial
BOP’s
unpaid
but with
amount to be
(IFRP).
Program
The sen-
Responsibility
(1) during
as follows:
the time
tencing court
have assumed
imprisonment, it
paid through
was to be
amount,
fail to
full
should Ward
Responsibili-
the BOP Inmate Financial
would choose to
IFRP.
(IFRP),
(2)
ty Program
during
order him
so. Nor
But it did not
to do
did
period
supervised
release it was to be
purport
the California
paid monthly
installments of not less
require
give
Ward to
percent
gross
than ten
in-
Gunning’s
participate. Nothing
come, commencing thirty days after his
dеlegation
can be construed as
imprisonment.
release from
the BOP. Nor
the order
does
II,
Gunning
The concludes that the sentenc- ning’s imprisonment. Thus, Id. at 1150. delegated authority by ing gross- its II, Gunning Gunning in both I and we ly our cases. expanding Gunning Those delegated held that the district court however, cases, clearly distinguishable. are scheduling authority affirmatively when it similarly majority also cites distin- entity directed another to set the schedule Only guishable out-of-circuit cases. one for the of restitution. majority’s directly supports case deci- clearly of this case facts are distin- that sion: an out-of-circuit case failed to guishable Here, Gunning from the cases. appreciate purpose the real of the MVRA’s the California district court did not order scheduling provisions. in participate Ward to the IFRP. It did I, Gunning
In
we held that the district
not direct the BOP to establish a
delegate
statutory
assign
court cannot
obli-
schedule. The order did not
“full
which,
gation
specify
payment”
anyone.
the manner
and control of
subsequent
which, a
according
Gunning
simply
the schedule
restitu- The
cases
are not authori-
paid.
ty
to be
F.3d at
order is
339
the issue before us.
case,
question
In that
there was no
that
developed
non-delegation
We further
delegated
the district court had
its authori-
Lemoine,
principle United States v.
ty. The district court had ordered “that
(9th Cir.2008).
case,
F.3d 1042
In that
Gunning ‘immediately’ make restitution in district court
had ordered Lemoine to
$3,924,835.37 and,
the amount
simulta-
“during
restitution
‘at
imprisonment
neously,
‘[a]ny unpaid
is to
that
amount
quarter,
the rate of
less than
per
$25
period
supervision
during
Bureau of Prisons’
”
probation
directed
a U.S.
officer.’
Inmate
Responsibility
Financial
Pro-
”
added).
(emphasis
F.3d at
That
order
gram.’
Id. at 1044. As a
of his
condition
only
assign-
could
have been construed as
IFRP, however,
in the
participation
ing
probation
“to the
office full control of
required
Lemoine to
restitution
subsequent payment.” Id.
per
deny-
In
rate of
month.
Id.
$132
in Gunning
ing
modify
judg-
We reaffirmed this
Lemoine’s motion to
principle
I,
ment,
Gunning
II.
from
it had
On remand
dis-
district
said
rule that
simply apply the same
we
choose to
cases
that Lemoine would
assumed
cases to
Gunning
it entered
in the
similar
adopted
in the IFRP when
participate
(on
review,
Notwithstanding
direct
order.
Others conclude
the restitution
facts.
BOP,
review)
by the
imposed
rate
higher
not collateral
court’s as-
notwithstanding
at sentenc-
courts abused their discretion
participate
sumption
Lemoine
of the
ing,
application
without
non-
IFRP,
the restitution
we held that
delegation doctrine.
delegate
did not
instance,
For
the facts of United States
“nothing
scheduling authority because
(3d Cir.2007),
Corley, 500
va-
deci-
prior
of the statute or our
the text
556 U.S.
grounds,
cated on different
opera-
any limits
the BOP’s
places
sions
(2009),
129 S.Ct.
173 L.Ed.2d
are
such as
independent program,
tion of
facts of
indistinguishable from the
Gun-
IFRP,
volun-
encourages
inmates
ning
Corley,
II.
more
tarily
generous
to make
ordered:
respec-
than
in their
payments
mandated
make
The defendant shall
If
Id. at 1048.
Lemoine
judgments.”
tive
any wages
and fíne
IFRP,
not to
had chosen
prison
earn
in accordance with
according to
have made payments
he could
the Bureau
Inmate Finan-
Prisons
Thus, Lem-
the court-ordered schedule.
Program. The
Responsibility
cial
resti-
of immedi-
did not hold that an order
oine
immediately.
tution and fine shall be due
payment implicitly delegates schedul-
ate
*16
upon
Any
remaining
balance
release
Rather,
authority
it held
ing
BOP.
custody
at a
shall be
rate of
a
assumption
district court’s
than
per
no less
month.
$100.00
in
participate
defendant
choose
added).
at 224 (emphasis
As in
not
the IFRP does
mean that its restitu-
II,
Gunning
ordered
delegated sched-
Third Circuit
impermissibly
tion order
authority.
scheduling
Id.
to submit to the
uling
at 1044.
defendant
au-
thority
during
period
of the BOP
support re-
Clearly, Lemoine does not
partici-
him to
requiring
incarceration
contrary,
case.
its
versal Ward’s
On
Here,
pate in the
on the
IFRP.
other
analysis
affirming
is consistent
hand, the court did not order Ward to
court.
makes clear that
Lemoine
submit to the
of the BOP. He
operate
regardless
can
IFRP
the BOP
voluntarily
may
choose to
imposed by the court.
of the schedule
IFRP or he
not to.
choose
if the California
court had
Even
pay according
to an in-
ordered Ward
The Second Circuit’s decision United
could still
Kinlock,
(2d
stallment
the BOP
oine
factors,
the statutory
considered
but or
presented,
through
its footnoted
facts
immediate
dered
face of
by majority.
relied on
dictum
evidence
was in
clear
that the defendant
capable
immediately.
of making payment
binding precedent
But
the absence of
Contrary
majority’s
at 301.
to the
majority bas-
support
reasoning,
Kinlock,
entirely
characterization
the Second
es its decision
on cases
almost
of these
from our sister circuits. Most
Circuit did
hold that
impermissible
order contained an
delega-
primary
case that gives comfort to
authority.
merely
tion of
It
held that the
the majority’s conclusion is the Eleventh
sentencing court’s abuse of discretion re- Circuit’s decision in United
States
Prou-
quired the restitution order to be vacated
(11th Cir.2002).
ty,
problem 3613A, or may office take they probation assume the the court 3572® repay- a inherent to set measures, entering has including number of a unilaterally when defen- ment schedule adjusting payment a schedule. 18 U.S.C. to meet the fails dant 3613A(a)(l). § But I am of no stat- aware assumption is court. That by the imposed requires Attorney General ute specifies the Once the court not correct. Rather, a a collections file such motion. if and payment, for and schedule method Attorney the dis- has agent, General is sim- actually are made when attempt to decide whether to cretion not be a It would a collections matter. ply arrangement a for col- voluntary work out a defen- to learn that even surprise great obligation help from lecting the or to seek his obli- ability pay has the dant who the court. occasion, may, on fail to do so. gations scenario, seeking party any collections im- Interestingly, even if the court had who has person a debt from a to collect rather than posed plan an installment attempt option failed to has the ob- ordering payment, immediate voluntary arrangement out an fоr work immedi- ligation would become due a or to seek assistance from if had ately he defaulted on agent But the does not court. collection Thus, even if ments. unilater- impose have inherent majority says what had done ally mandatory payment and enforce a have, have ended Ward could well should Indeed, officer’s probation schedule. precise situation he is now. up probation in Prouty that statement 3572®, section a defendant Under plan[ “work ]” office would out [a] obligated full amount of a plan he recognized indicates that such immediately, regardless require Prouty’s voluntary agree- he is pay. whether able to ment. See id. circumstances, defaulting In some de- responsibility collecting restitu- might hearing request fendant himself obligations is committed to the Attor- For sections and 3613A. 3612(c). 3572® But ney General. U.S.C. if remain example, Ward does not want to Attorney not give the statutes do Gen- ability pay, lacks in default but Rather, judicial authority. if a defen- eral re- might protection seek pay voluntarily dant refuses to be- —either *18 entry adjustment of a questing ability he lacks the or because cause Ward did section 3613A. contempt mere of the court—the stat- of attempt to obtain relief from Attorney to seek utes direct General a judge by filing from the that sentenced him mo- assistance court. § under 28 U.S.C. 2255. See United A into default goes restitution Ward, AWI, States No. CR 02-5231 days. delinquent if it is for more than 90 (E.D.Cal. *1 Dec. at 3572(i). § “Notwithstanding 18 U.S.C. reconsideration, 2008), vacated any pay- installment a ... when (E.D.Cal. 2009). The Jan. WL default, the entire ment restitution is that it ultimately decided ... amount of the is due within jurisdiction a motion lacked to consider default, days after of the notification § under 28 U.S.C. WL subject provisions to the section 3613A.” 160690, at *1-2. But that court would Attorney designee If General or his clearly jurisdiction a had to consider a against moves the court for sanctions have judgment by conditioning restitution order un- modify motion to re- 3572(i) §§ and 3613A. ceipt privileges during 18 U.S.C. of certain der the term imprisonment on the partic- inmate’s might A defendant like Ward find IFRP”). ipation in the a option to make motion attractive such help statutory it could him avoid because majority argues because the delinquency in payment. for his penalties BOP has the to move for sanc- But, 3612(g). again, 18 U.S.C. be- See tions, it has the “to power dictate the is on the Attor- cause onus of collection terms of the of the defendant’s General, ney requires go Ward to nothing Op. at order.” 1051. Of may the court. He choose to work beforе course, this is As I explained, not so. have voluntary an arrangement informal out defendants are not bound the will of the BOP, with the or he choose to live sure, BOP. To significant the BOP has and remain in restitution order leverage in bargaining terms of a de- default. participation fendant’s the IFRP. But Because Ward failed entire the BOP cannot a defendant adopt force immediately, he restitution award went the BOP’s payment schedule. Further- default. Ward or the into Either BOP more, defendants default such as Ward a could filed motion district have access to the courts. If Ward were pursuant to sections 3572® to file a motion under sections 3572® 3613A, party but neither chose to do so. 3613A, government could recommend a Instead, the BOP offered to allow toWard if schedule. But even the court were to in the IFRP and Ward volun- reject government’s recommendation, tarily accepted It was the offer. the BOP would remain free to set condi- choice, not the of the sentencing tions voluntary participation Ward does have to participate court. IFRP independently the court’s order. program. may opt in this out of it He at But none upon of this confers the BOP the If time. he withdraws from the judicial authority to set Ward’s payment IFRP, impose a payment BOP cannot case, schedule. On the facts a schedule on him. defendant in As de- California retained that fault, free Ward would be to make authority. (or ments on whatever chooses all) no to make unless the IV. government obtains from the sanctions Where the appeal? does this leave by filing district court a motion California majority has chosen address an issue 3572(i) under sections and 3613A. Con- clearly which is before Having us. versely, actually if get wanted to out caught possible scent of abuse of default, he could file motion sentencing, discretion at majority to sections 3613A requesting 3572® adopts argument that Ward failed to that the California court enter *19 make on a appeal direct the Califor- even if payment schedule. But court, nia district likely which he would adopted precluded have been from making in his prevent would not the BOP from setting collateral attack in Arizona district own voluntary conditions for Ward’s court, which, event, in Lemoine, express- he in See participation the IFRP. (“[T]he ly in petition declined to either his F.3d at make has the his voluntary payments corpus appeal habeas or in from the encourage required Arizona denial peti- in excess those under district court’s of the and well practice surprising is That tion. KARL, Plaintiff-Appellee, Martha taken of issues
beyond the usual rules court. repeated ignoring after Ward’s TERRACE, Even OF MOUNTLAKE CITY waivers, the California assuming and even Defendant, in an court issue can be reached district corpus peti- habeas Arizona Caw, Pete, as
tion, majority is on the law. also known wrong Charles Defendant-Appellant. sen- assuming the California Even reversible non- tencing court committed No. 11-35343. by failing error —either constitutional Appeals, United States Court of finan- relating factors consider Ninth Circuit. by ordering immediate cial condition in the face of clear evidence Argued and March 2012. Submitted ability lacked the —there 8,May Filed delegates any nothing the order that I the BOP. would as does long hold as a district court to a
not order defendant to submit an body, established another the restitu- order that defendant immediately does run afoul of the non-delegation principle our established Gunning cases. and until the government
Unless obtains the schedule for modifying payments, his Ward is free to make prefers on whatever ments However, if he obligor default. stop making payments chooses BOP, voluntary agreement privilege then the BOP withhold the I participation the IFRP. affirm the district of Ward’s court’s denial petition. corpus habeas