Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 CR 770-Ronald A. Guzmán, Judge. Appeal from the United States District Court for the Southern District of Illinois. No. 3:05-CR-30025-001-MJR-Michael J. Reagan, Judge. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 758-Blanche M. Manning, Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge
Before EASTERBROOK, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
In each of these appeals, the sole argument is that the district court committed plain error by not specifying an installment plan for the payment of restitution. In one of the three cases the district judge set a plan (which we call a "schedule" following the statutory usage) to begin after release from custody; this defendant maintains that doing so delegated schedule-setting during imprisonment to the Bureau of Prisons. In the other cases the district judge ordered all restitution to be paid immediately. The judges in these two cases announced schedules orally but failed to incorporate them into the judgments, which state unconditionally that all restitution is due "immediately"; a judge's oral statements are not enforceable when an unambiguous judgment provides otherwise. None of the three defendants protested in the district court. We conclude that the first decision is correct and that the oversight in the others need not be corrected on appeal under the plain-error doctrine. See Fed. R. Crim. P. 52(b).
All three defendants pleaded guilty, and for current purposes their crimes don't matter. Michael Sawyer was sentenced to 51 months' imprisonment and ordered to pay $1,386,082 as restitution. The judgment provides that the full sum is due immediately. Patrick Duncan was sentenced to 96 months' imprisonment plus $177,727 as restitution. The judgment provides that "[p]ayments are due immediately" but does not deal with time in prison other than to say that money "may be paid from prison earnings in compliance with the Inmate Financial Responsibility Program." After release, Duncan must pay $100 per month or 10% of his net earnings, whichever is greater. Terrell Rogers was sentenced to 51 months' imprisonment plus $1,837 as restitution. The judgment provides that the full sum is due immediately. All three defendants assert that they are unable to pay the whole award now, and that 18 U.S.C. §3664(f)(2) therefore required the district judges to set a schedule of payments. See United States v. Day, 418 F.3d 746, 751--57 (7th Cir. 2005). The prosecutors concede the point for all three defendants; we accept that concession.
Duncan maintains that the district judge should have specified how much he must pay each of his 96 months in prison. To require some payment, while leaving the amount open, is to delegate a judicial task to the Bureau of Prisons, Duncan insists. Yet where's the "delegation"? In civil litigation, a judgment creditor chooses how soon (if at all) to collect; no one thinks of this as a delegation of judicial power to a private litigant. State law may establish exemptions and limit the extent of attachment or garnishment to collect a judgment, but no power has been delegated from the federal judge to the state. As for the Bureau of Prisons: it does not need judicial permission to remit money from a prisoner's account, with or without the prisoner's assent. It has ample authority to set the terms on which inmates are held. Whether inmates make any money during their captivity, and, if they do, how much must be paid to creditors, are subjects well within the authority of the Executive Branch. See 28 C.F.R. §545.11 and Program Statement P5380.08 (amended Aug. 15, 2005), which set out the details of the Inmate Financial Responsibility Program.
Courts are not authorized to override the Bureau's discretion about such matters, any more than a judge could dictate particulars about a prisoner's meal schedule or recreation (all constitutional problems to the side). Prisoners dissatisfied with a warden's administration of the Inmate Financial Responsibility Program may appeal within the Bureau of Prisons, see 28 C.F.R. §545.11(d), and may be able to obtain judicial review of the Bureau's final decision under the Administrative Procedure Act. 5 U.S.C. §702. Review under the APA is not plenary; it is limited to a search for legal errors and arbitrary application. 5 U.S.C. §706(2). Limits created by the APA cannot be evaded by issuing a peremptory direction to the Bureau of Prisons as part of the judgment of conviction. What a court is not entitled to do it is certainly not required to do.
The authority of the Executive Branch of the federal government does not depend on, or represent, any "delegation" of power by the Judicial Branch. A judge who turns scheduling over to a probation officer does delegate authority, because the probation officer's only power stems from the court. See United States v. Ahmad, 2 F.3d 245, 249 (7th Cir. 1993). But the Bureau of Prisons' authority rests on statutes, and any delegation is from the President and the Attorney General rather than a judge. Cf. United States v. Gomez, 24 F.3d 924 (7th Cir. 1994) (Bureau may apply prisoner's income to satisfy his debts); United States v. House, 808 F.2d 508 (7th Cir. 1986) (same).
Because a prisoner's earnings while in custody depend on the Bureau of Prisons, as well as the prisoner's cooperation with its programs, it is not clear what payment schedule a court could set if it wanted. Only assets the prisoner had at the time of his sentence would be available as a realistic matter-and any existing assets should be seized promptly. If the restitution debt exceeds a felon's wealth, then the Mandatory Victim Restitution Act of 1996, 18 U.S.C. §§ 3663A, 3664, demands that this wealth be handed over immediately; a schedule of payments covers only how much the convict must pay from earnings (and any lump sums such as inheritances) in the future.
Prison earnings and other transactions concerning prison trust accounts are so completely within the Bureau of Prisons' control that it would be pointless for a judge to tell the convict how much to pay a month. We therefore agree with United States v. Dawkins, 202 F.3d 711 (4th Cir. 2000), and United States v. Miller, 406 F.3d 323 (5th Cir. 2005), that a judgment of conviction need not contain a schedule of restitution payments to be made during incarceration. We recognize that six circuits have reached a contrary conclusion. See United States v. Kinlock, 174 F.3d 297 (2d Cir. 1999); United States v. Corley, 500 F.3d 210 (3d Cir. 2007); United States v. Davis, 306 F.3d 398 (6th Cir. 2002); United States v. McGlothlin, 249 F.3d 783 (8th Cir. 2001); United States v. Gunning, 401 F.3d 1145 (9th Cir. 2005); United States v. Overholt, 307 F.3d 1231 (10th Cir. 2002). But these decisions rest on a view that a silent judgment "delegates" judicial authority to the Bureau of Prisons, and we have explained why this is not so.
On occasion district judges have tried express delegation to the Bureau of Prisons. United States v. Pandiello, 184 F.3d 682, 688 (7th Cir. 1999), was such a case, and we held that a court may not transfer judicial authority to the Bureau. (In Pandiello the district judge had directed the defendant to make equal monthly payments while in prison, then left it to the Bureau to set the amount of those level payments. See 184 F.3d at 688.) But when the judicial silence allows the Bureau to decide how much, if anything, to remit through the Inmate Financial Responsibility Program, there is no problem. So we held in McGhee v. Clark, 166 F.3d 884 (7th Cir. 1999), with respect to collection of a fine through a prison trust account. McGhee remarked that "[c]ases in which a district court expressly has delegated to the [Bureau] its discretion to schedule . . . payments have no application" when the judgment leaves all decisions to the Bureau, to be made on the Bureau's own authority. 166 F.3d at 886. Whether Pandiello is sound in treating the district court's specification of any details of payment during prison as a form of "delegation" is a subject that we need not consider further today.
Thus we hold that leaving payment during imprisonment to the Inmate Financial Responsibility Program is not an error at all, let alone a plain error. The statute requires the judge to set a schedule if the defendant cannot pay in full at once, see 18 U.S.C. §3664(f)(2), but it does not say when the schedule must begin. We hold today that it need not, and as a rule should not, begin until after the defendant's release from prison. Payments until release should be handled through the Inmate Financial Responsibility Program rather than the court's auspices.
With respect to Sawyer and Rogers, however, the district judges erred. Neither has the ability to pay immediately, and §3664(f)(2) therefore required the judges to set schedules for repayment from future earnings and other income once they leave prison. Several decisions in this circuit hold that omissions of any schedule at all meets the requirements of "plain error" under Fed. R. Crim. P. 52(b). See, e.g., United States v. Thigpen, 456 F.3d 766, 771 (7th Cir. 2006); United States v. Mohammad, 53 F.3d 1426, 1438--39 (7th Cir. 1995); see also Pandiello, 184 F.3d at 688. Recently we held that a judge's improper failure to set schedules for drug testing of persons on supervised release is not plain error. See United States v. Tejeda, 476 F.3d 471, 475--76 (7th Cir. 2007). That opinion, which was reviewed by the full court under Circuit Rule 40(e), observes that plain-error review is not designed to produce "expensive, technical, but essentially meaningless do-overs". 476 F.3d at 475. That's a fair description of what Sawyer and Rogers want. The United States has asked us to overrule Thigpen and its predecessors in light of Tejeda.
Plain-error review has three requirements and one discretionary component. The requirements are (1) error that (2) is plain and (3) affects substantial rights. See United States v. Olano, 507 U.S. 725 (1993). If the defendant shows these three things, then the court of appeals must decide whether to exercise discretion in his favor. A court should do so if the error "seriously affected the fairness, integrity or public reputation of judicial proceedings." Id. at 736. See also United States v. Cotton, 535 U.S. 625, 631--33 (2002); Jones v. United States, 527 U.S. 373, 389 (1999). ...