United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Gottschall United States District Judge
2012, Gary Roberson completed serving a 120-month sentence
for bank robbery and a related offense. As part of his
sentence, he was also ordered to pay approximately $82, 000
in restitution. (Am. J. 6, ECF No. 240.) That amount has
ballooned to over $100, 000 since his sentence was imposed.
Roberson, who represents he has recently opened his own small
business refurbishing bathtubs and tile, has asked the court
to limit or waive the interest. The government argues that no
statute gives the court the power, that is, the jurisdiction,
to waive or limit interest on restitution once a criminal
judgment has been entered. Applying the Seventh Circuit's
decision in United States v. Goode, 342 F.3d 741(7th
Cir. 2003), the court determines that 18 U.S.C. §
3664(k) grants it that power when a defendant experiences a
“material change in . . . economic
pleaded guilty to a two-count superseding indictment charging
him with bank robbery, see 18 U.S.C. § 2113(a) and (d),
and brandishing a firearm in connection with that crime,
see id. § 924(c)(1)(A). The court ultimately
imposed consecutive sentences on the two counts totaling 120
months; two concurrent, five-year terms of supervised
release; and $82, 908 in restitution to be paid in a lump
sum. (Am. J. 6, 7, ECF No. 240.) A note in the “special
instructions” section of Roberson's amended
judgment provides that “restitution and special
assessment obligation shall be made payable with 10% of
defendant's net monthly income.” (Id. at
7.) Roberson was released from prison on September 3, 2012,
and began serving his term of supervised release.
filed a motion on August 29, 2016, asking the court to
terminate his supervised release early. In that motion, he
cites 18 U.S.C. § 3664(k), and asks the court to limit
his restitution to 10% of his net income and “no
interest payments accruing on the restitution amount.”
(ECF No. 267 at 5.) At a hearing on the motion held September
7, 2016, the court granted Roberson's request for early
termination of his supervised release. The government
asserted that this court lacked jurisdiction to limit
Roberson's interest payments, and the court set a
schedule to brief the question. After considering the
parties' memoranda, the court concludes that it has
jurisdiction under 18 U.S.C. § 3664(k) to adjust a
defendant's interest payments prospectively after entry
This Court has Jurisdiction to Relieve a Defendant
Prospectively of Interest on Restitution
under 18 U.S.C. § 3664(k)
repeatedly asserts that the interest that has accrued on the
amount of restitution he owes is “unauthorized.”
(Mot. Early Termination & Limit Restitution 5, ECF. No.
267.) But, as it did when Roberson was sentenced, 18 U.S.C.
§ 3162(f)(1) makes payment of interest mandatory when
the fine or restitution amount exceeds $2, 500. 18 U.S.C.
§ 3612(f)(1) (2006) (“The defendant shall pay
interest on any fine or restitution of more than $2, 500,
unless the fine is paid in full before the fifteenth day
after the date of the judgment.”); see id.
§ 3612(f)(2) (prescribing method for computing
interest). The parties devote the bulk of their briefing to
the question of whether § 3612(f)(3), which permits the
court to waive or limit interest “[i]f the court
determines that the defendant does not have the ability to
pay interest, ” gives this court jurisdiction to adjust
the interest on restitution postjudgment. Courts have divided
on this question and the proper interpretation of the Seventh
Circuit's decision in United States v. Goode,
342 F.3d 741(7th Cir. 2003). Compare, e.g., United States
v. Brumfield, 125 F.Supp.3d 648, 651-52 (W.D. Mich.
2015) (collecting and discussing cases and concluding that
the majority of district courts have held that §
3612(f)(3) confers no postjudgment jurisdiction), with
United States v. Perez, No. 90-CR-546, 2008 WL 4865992
(N.D. Ill. July 1, 2008), (“Some non-binding opinions
and Seventh Circuit dicta notwithstanding, this Court sees no
language that precludes post-sentencing reconsideration of
interest under the authority of § 3612.”). While
the parties have collected an impressive array of cases
addressing § 3612(f)(3), this court's reading of
Goode leads it to conclude that it has jurisdiction
to modify Roberson's interest payments postjudgment under
18 U.S.C. § 3664(k), which Roberson cites in his
motion. See infra at 4-5 (setting forth
full text of subsection). The cases on which the parties rely
construing § 3612(f)(3) do not discuss § 3664(k).
See, e.g., Brumfield, 125 F.Supp.3d at 651-52;
United States v. Benjamin, Criminal No. DKC 96-0217,
2011 WL 3821534, at *2-3 (D. Md. Aug. 26, 2011).
Goode, the Seventh Circuit considered a district
court's postjudgment jurisdiction to adjust interest on a
fine. 342 F.3d 741 (7th Cir. 2003). The district court
sentenced the defendant to pay three $5, 000 fines and to
serve a total of 327 months in prison. Id. at 742.
While still in custody, the defendant petitioned to clarify,
remit, or suspend his obligations to pay interest on the
fines, arguing that he made installment payments on the fines
and that paying interest saddled him with an unfair financial
burden. See id. at 742-43.
Goode court began its analysis by determining
whether the district court had subject-matter jurisdiction.
Id. at 743. “Once a court sentences a criminal
defendant, it has jurisdiction to continue hearing related
issues only when authorized by statute or rule.”
Id. (citing Carlisle v. United States, 517
U.S. 416, (1996)). The Goode court rejected several
possible grounds for jurisdiction. See id. The
defendant filed his petition too late to correct a judgment
under Federal Rule of Criminal Procedure 35(a), and he sought
substantive relief, not to correct a clerical error within
the meaning of Rule 36. Id. (citations omitted).
Because he challenged his fine, as contrasted with the fact
or duration of his custody, he could not proceed under the
federal habeas corpus substitute, 28 U.S.C. § 2255.
Id. (citing Barnickel v. United States, 113
F.3d 704, 706 (7th Cir. 1997)). Finally, because “only
the Government may petition for remission [of a fine] under
18 U.S.C. § 3573, ” that statute did not vest the
district court with the power to consider the defendant's
request. Id. (citing United States v.
Linker, 920 F.2d 1, 1-2 (7th Cir.1990)). Finally, the
Goode court opined that the “interest
obligation could not be disturbed because the court made no
determination at sentencing under § 3612(f)(3) that he
was unable to pay.” Id. at 744. The
Goode court nevertheless held that 18 U.S.C. §
3572(d)(3), which “allows criminal defendants to seek
relief from fines based on economic hardship, ” gave
the district court jurisdiction to consider the
defendant's petition. Id. That statute provides:
A judgment for a fine which permits payments in installments
shall include a requirement that the defendant will notify
the court of any material change in the defendant's
economic circumstances that might affect the defendant's
ability to pay the fine. Upon receipt of such notice the
court may, on its own motion or the motion of any party,
adjust the payment schedule, or require immediate payment in
full, as the interests of justice require.
18 U.S.C. § 3572(d)(3).
enacted § 3572(d)(3), Congress also passed 18 U.S.C.
§ 3664(k). See Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 §§ 206(a), 207(b). Section 3464(k) contains
language nearly identical to § 3572(d)(3):
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, ...