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U.S. v. ILES
August 5, 2004.
UNITED STATES OF AMERICA, Plaintiff,
MONICA M. ILES, Defendants.
The opinion of the court was delivered by: WILLIAM HART, Senior District Judge
MEMORANDUM OPINION AND ORDER
Following her conviction on eight counts of wire fraud
involving a fraudulent investment scheme, defendant Monica Iles
was sentenced to 78 months' incarceration to be followed by three
years' supervised release. Iles was also ordered to pay an $800
assessment and $11,109,970 in restitution. The combined amount
was ordered to be paid in a lump sum payment due immediately.
Iles was sentenced on April 30, 2003 and surrendered on September
On June 9, 2004, Iles filed her "motion to amend judgment" in
which she requests that the order of restitution be modified so
that restitution is not due until after she is released from
incarceration. Iles represents that, in the past, she has
received approximately $350 per month in gifts from friends and
her daughters. She represents that her daughters continue to or
are willing to continue to send her approximately $200 per month. However, the Bureau of Prisons ("BOP") credits
approximately $145 per month of these payments toward
restitution. It is unclear whether she means $145 of the $200
from her daughters or $145 when she received $350. It is conceded
that the BOP is acting in accordance with applicable regulations.
Iles contends she needs her daughters' money for purchasing
necessities and that, while her daughters are willing to help
support her, they are not necessarily willing to make
contributions toward restitution payments. Iles requests that the
payment of additional restitution be postponed so she can receive
the full amount of the gifts from her daughters.
The government opposes the motion. The government contends that
it is for the BOP, not the court, to decide how monetary gifts to
prisoners are to be allocated. The government also contends that
plaintiff must first exhaust her administrative remedies with the
BOP before bringing a habeas corpus petition pursuant to
28 U.S.C. § 2241.
The government misconstrues the nature of defendant's motion.
Iles is not alleging that the BOP has acted improperly. Neither
is defendant attempting to challenge the amount of restitution
that was imposed. Iles is instead attempting to modify the
court-ordered payment schedule for paying the restitution that
was imposed. In accordance with 18 U.S.C. § 3664(k), motions to
modify the term of payment for restitution may be brought before
the district court. Cani v. United States, 331 F.3d 1210
, 1215-16 (11th Cir. 2003). Section 3664(k)
A restitution order shall provide that the defendant
shall notify the court and the Attorney General of
any material change in the defendant's economic
circumstances that might affect the defendant's
ability to pay restitution. The court may also accept
notification of a material change in the defendant's
economic circumstances from the United States or from
the victim. The Attorney General shall certify to the
court that the victim or victims owed restitution by
the defendant have been notified of the change in
circumstances. Upon receipt of the notification, the
court may, on its own motion, or the motion of any
party, including the victim, adjust the payment
schedule, or require immediate payment in full, as
the interests of justice require.
Based on changed financial circumstances, a court may modify the
requirement that restitution be paid immediately and instead
require that payment begin after the defendant's release from
custody. See, e.g., United States v. Bowles, 2003 WL 21396691
(S.D.N.Y. June 16, 2003).
Defendant has not shown a change of her financial circumstance.
The presentence report indicated that defendant had previously
received gifts and loans from friends to help her support
herself, including to support herself following a prior
conviction. Gifts of a few hundred dollars a month while
incarcerated are not unusual or unexpected. The report that
defendant's daughters are willing to provide her gifts of $200 a
month does not qualify as a material change in defendant's
economic circumstances. Without such a change, no basis exists
for modifying the prior order that restitution is due immediately. See Cani, 331 F.3d at 1216. Since no material
change is found to have occurred, it was not necessary to send
notice to victims prior to ruling on the proposed modification.
IT IS THEREFORE ORDERED that defendant Iles's motion to amend
judgment  is denied. This order is without prejudice to
defendant following Bureau of Prisons administrative procedures
for seeking to modify the amount of her funds that are to be
credited to restitution.
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