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United States v. Ellis

April 3, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
KELVIN ELLIS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Illinois. No. 05 CR 30010-William D. Stiehl, Judge.

The opinion of the court was delivered by: Sykes, Circuit Judge.

ARGUED FEBRUARY 21, 2007

Before EASTERBROOK, Chief Judge, and FLAUM and SYKES, Circuit Judges.

The single issue raised in this appeal concerns the extent of a district court's obligation to establish a payment schedule when imposing a criminal fine. The parties contest whether our decision in United States v. Day, 418 F.3d 746 (7th Cir. 2005), which held that a district court must establish a payment schedule when imposing restitution, is applicable to the imposition of fines. Because the restitution and criminal fine statutes differ in the obligations they place on district courts, we conclude that Day is inapplicable to the latter.

Kelvin Ellis pleaded guilty to evasion of income taxes for the 2001 tax year. He was sentenced to twenty-one months in prison and three years of supervised release, and the district court imposed a $100 special assessment and a $3,000 fine. When the judge set the fine at Ellis's sentencing hearing, he said:

It is further ordered that the Defendant pay to the United States a fine in the amount of $3,000, and a special assessment of $100. The fine and special assessment, totaling $3,100, are due immediately and are payable through the Clerk of the United States District Court.

If the Defendant is unable to satisfy the fine and special assessment during the period of incarceration, the payment of any unpaid balances shall become a condition of supervised release. And the Defendant shall pay the unpaid balances at the rate of $100 a month or ten percent of his monthly gross income, whichever is greater.

The court's written judgment stated:

Payments are due immediately, through the Clerk of the Court, but may be paid from prison earnings in compliance with the Inmate Financial Responsibility Program. Any financial penalties that remain unpaid at the commencement of the term of supervised release shall be paid at the rate of $100.00 per month, or 10% of defendant's monthly gross earnings, whichever is greater.

The sole issue Ellis raises on appeal is whether the district court erred by failing to establish a schedule for making fine payments while Ellis is incarcerated. Ellis raised no objections before the district court regarding the imposition of his fine; consequently, we review his claim for plain error.*fn1 FED. R. CRIM. P. 52(b).

Under the federal statute governing imposition and payment of criminal fines, the sentencing court has the option of making a fine payable immediately or in installments. 18 U.S.C. § 3572(d)(1). If a fine is ordered payable immediately, " 'immediate payment' does not mean 'immediate payment in full;' rather it means 'payment to the extent that the defendant can make it in good faith, beginning immediately.' " United States v. Jaroszenko, 92 F.3d 486, 492 (7th Cir. 1996) (citation omitted). If a fine is ordered payable in installments, "the installments shall be in equal monthly payments over the period provided by the court," 18 U.S.C. § 3572(d)(1), and "the length of time over which scheduled payments will be made shall be set by the court," id. § 3572(d)(2).

Because § 3572 obligates the sentencing court to establish a schedule if it chooses to permit installment payments, we have previously held that a court cannot delegate to the Probation Department the authority to set a payment schedule. See United States v. Arellano, 137 F.3d 982, 986 (7th Cir. 1998) ("The district court itself must set the payment schedule for fine[s] . . . ."). However, because the court has no equivalent responsibility when it orders a fine payable immediately, we have also concluded that a "payment schedule established by the [Bureau of Prisons ("BOP") through the Inmate Financial Responsibility Program ("IFRP")] does not conflict with [a] sentencing court's immediate payment order." McGhee v. Clark, 166 F.3d 884, 886 (7th Cir. 1999) (emphasis added).

Because the district court ordered Ellis's fine payable immediately, its order is governed by McGhee, which leaves the BOP free to establish payment amounts while Ellis is incarcerated. Ellis maintains McGhee must be reconsidered in light of this court's decision in Day. In Day, evidence established that the defendant could not presently make any payments toward restitution; we held that an order making his restitution payable immediately operated to "assign[ ] responsibility to the Probation Office to formulate a payment schedule" and this constituted an impermissible delegation of judicial authority to the defendant's probation officer. 418 F.3d at 761.

Day concerned the Mandatory Victim Restitution Act ("MVRA"), 18 U.S.C. § 3664, which differs markedly from the fine statute, 18 U.S.C. § 3572. Under the MVRA, the court is required to establish "the manner in which, and the schedule according to which, the restitution is to be paid." Id. § 3664(f)(2). In setting that schedule, the court is also obligated to consider factors regarding the defendant's financial resources and present ability to pay. Id. Because the evidence in Day indicated the defendant would be unable to pay the ordered restitution immediately, we concluded the MVRA obligated the district court to establish a payment schedule. In so holding, we also concluded that "the most direct, and most ...


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