United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION DENYING WITHOUT PREJUDICE
DEFENDANT DENISHA PORFS MOTION TO CORRECT
Mandatory Victim's Restitution Act requires a court to
order restitution irrespective of ability to pay."
United States v. Miller, 406 F.3d 323, 328 (5th Cir.
2005) (citing 18 U.S.C. § 3664(f)(1)(A)). "
'Once a court has set the amount of restitution owed to
the victim, it must then provide a schedule for payment of
the award, considering the factors listed in 18 U.S.C. §
3664(f)(2).' " United States v. McKenzie,
550 Fed.Appx. 221, 227 (5th Cir. 2013) (quoting United
States v. Arledge, 553 F.3d 881, 900 (5th Cir. 2008)).
"These factors are: '(A) the financial resources and
other assets of the defendant, including whether any of these
assets are jointly controlled; (B) projected earnings and
other income of the defendant; and (C) any financial
obligations of the defendant; including obligations to
dependents.' " Id. (quoting 18 U.S.C.
§ 3664(f)(2)). "The district court has discretion
to order only nominal periodic payments, 18 U.S.C. §
3664(f)(3)(B)The district court is in the best position to
determine the defendant's ability to pay and the
reasonableness of a payment schedule." United States
v. Crawley, 381 Fed.Appx. 462, 466 (5th Cir. 2010).
February 26, 2014, this Court sentenced Defendant Denisha
Pore to 125 months imprisonment with five years of supervised
release and restitution in the amount of $104, 384.76. Taking
into account Pore's financial status, this Court ordered
that restitution begin immediately during Pore's period
of imprisonment and stated that such payments could be made
through the Federal Bureau of Prisons' Inmate Financial
Responsibility Program ("IFRP"). Restitution was
ordered to be paid in equal monthly installments while
incarcerated, with any balance remaining upon release from
incarceration to be paid in equal monthly installments as
determined by application of the criminal monetary payment
schedule adopted by this Court to Pore's verified
disposable monthly income. After restitution was properly set
by the Court at sentencing, the Federal Bureau of Prisons had
the independent, statutory authority to collect said
restitution through the IFRP. See Schmidt v. U.S.
Dep't of Justice, 34 Fed.Appx. 151, at * 1 (5th Cir.
2002) (per curiam); United States v. McGlothlin, 249
F.3d 783, 785 (8th Cir. 2001).
before the Court is Pore's pro se motion to
correct restitution , wherein Pore argues that she
should be allowed under 18 U.S.C. § 3664(k) to make her
restitution payments on a quarterly basis of $25.00 while she
is incarcerated due to a change in her financial
circumstances. This is the second motion Pore has made
requesting such a change.
motion properly urged under 18 U.S.C. § 3664(k) presents
"a challenge to the district court's existing
restitution order, rather than ... a challenge to the payment
plan created by the Bureau of Prisons under the [IFRP]."
See United States v. Guzman, 560 Fed.Appx. 426, 427
(5th Cir. 2014) (per curiam). To the extent the motion
challenges the frequency of payments set by this Court in the
restitution order, Pore's motion falls under 18 U.S.C.
§ 3664(k). The Court instructs Pore that the Court
"may, on ... the motion of any party, ... adjust the
payment schedule ... as the interests of justice require,
" if two conditions are met: (1) the defendant
"notif[ies] 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"; and (2) "[t]he Attorney
General . . . certif[ies] to the court that the victim or
victims owed restitution by the defendant have been notified
of the change in circumstances." 18 U.S.C. §
3664(k) (emphases added); see also 18 U.S.C. §
3572(d)(3). "A change of the sort contemplated by the
statute is identified by an objective comparison of a
defendant's financial condition before and after a
sentence is imposed." United States v. Grant,
235 F.3d 95, 100 (2d Cir. 2000) (cited in United States
v. Franklin, 595 Fed.Appx. 267, 273 (5th Cir. 2014) (per
curiam)). As explained in the Court's opinion 
concerning Pore's first motion, for this Court to
properly consider Pore's request to make quarterly
instead of monthly restitution payments, Pore must notify the
Attorney General of the changes in her economic circumstances
that might affect her ability to pay restitution, and the
Attorney General must certify to this Court that the victims
owed restitution by Pore have been notified of the change in
circumstances. Only if both of those requirements are met can
this Court consider that issue.
response, Pore contends is not her ability to pay that has
been affected, but rather the amount she must currently pay
under her IFRP plan. Again, as explained in the Court's
prior opinion, if Pore seeks a change of the IFRP plan,
including her payment amount, she must seek this relief under
28 U.S.C. § 2241 in the district where she is
incarcerated and only after she has exhausted
all administrative remedies. See United States v.
Diggs, 578 F.3d 318, 319-20 (5th Cir. 2009). Because
Pore is currently incarcerated in Fort Worth, Texas, she must
file any such motion in the United States District Court for
the Northern District of Texas.
on all of the foregoing, Defendant Denisha Pore's pro
se motion to correct restitution ...