United States District Court, W.D. Pennsylvania
JOY FLOWERS CONTI, Chief District Judge.
On November 10, 2010, defendant Vasilia Berger ("defendant") pleaded guilty to wire fraud conspiracy, a violation of 18 U.S.C. § 1349, and money laundering conspiracy, a violation of 18 U.S.C. § 1956. On March 5, 2013, this court imposed upon defendant a term of imprisonment of 78 months at each count, to concurrently run, a term of supervised release of three years at each count, to concurrently run, restitution in the amount of $871, 669.81, to be paid jointly and severally with defendant's codefendants, and a special assessment of $100 at each count, for a total special assessment of $200. At the time the court sentenced defendant, she owned and operated a restaurant employing at least six other people. In light of defendant's debt, however, she had a negative net worth. The judgment setting forth defendant's sentence with respect to restitution provided:
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prions' Inmate Financial Responsibility Program, are made to the clerk of the court.
(ECF No. 109 at 6) Pursuant to the judgment entered on March 6, 2013, the special assessment of $200 was immediately due. The court, however, did not set a payment schedule during incarceration for defendant's restitution obligation of $871, 669.81. As a condition of supervision, defendant is required to "pay any financial penalty that is imposed by this judgment and that remains unpaid at the commencement of the term of supervised release at a rate of not less than 10 percent of [her] gross monthly income." (ECF No. 109 at 4.)
On March 12, 2015, defendant-who is currently serving the sentence of incarceration that this court imposed upon her on March 5, 2013-filed a motion to clarify the restitution order imposed by the court (ECF No. 133). On March 26, 2015, the government filed a response to defendant's motion for clarification. (ECF No. 135.) On April 24, 2015, defendant filed a motion to amend or correct the restitution order (ECF No. 136). Defendant in her motions seeks clarification of the court's restitution order and for the court to revise the payment schedule with respect to her restitution obligation of $871, 669.81. The court herein will address defendant's arguments and whether she is entitled to the relief she now seeks.
In United States v. Corley, 500 F.3d 210 (3d Cir. 2007), the court of appeals explained:
Section 3664(f)(2) requires the sentencing court to "specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid, " in consideration of the defendant's economic circumstances. Although the court may order immediate payment in full of the entire amount of restitution, id. §§ 3572(d)(1), 3664(f)(3)(A), it may only do so "in consideration of" the defendant's finances.
Id. at 224 (citing United States v. Coates, 178 F.3d 681, 684 (3d Cir. 1999)). When this court sentenced defendant, it acknowledged that defendant did not have the financial ability to pay a fine, and was aware that defendant had a negative net worth. The court under § 3664, Corley, and Coates was required to set a payment schedule for defendant during her incarceration based upon its knowledge of defendant's financial circumstances. While the court set a payment schedule for the period of supervised release, the court's failure to do so for defendant's period of incarceration was plain error. Coates, 178 F.3d at 684 ("Since the MVRA mandates that district courts schedule restitution payments after taking into account the defendant's financial resources, the District Court's failure to do so here constitutes plain error."). Defendant, however, did not raise this issue with the court at the time of sentencing, file a motion pursuant to Federal Rule of Criminal Procedure 35(a),  or within fourteen days of the entry of the judgment against her appeal the issue to the Court of Appeals for the Third Circuit. The time period for filing a motion pursuant to Rule 35(a) to correct clear error, i.e., fourteen days after sentencing, has passed; likewise, the time period for filing an appeal to the Court of Appeals for the Third Circuit has passed. Whether under another statutory provision defendant is entitled to relief will be discussed below.
A. 18 U.S.C. § 3664(k)
Defendant reports that she currently receives an "Inmate Teacher's Aide pay of $0.29 (twenty-nine cents) an hour and works 20 to 35 hours a week." (ECF No. 136 at 1.) Defendant does not seek a reduction in her restitution obligation; rather, she seeks a payment schedule whereby she is obligated to pay $25 per month towards restitution during her incarceration. (Id.) Defendant seeks relief from this court under 18 U.S.C. § 3664(k), which provides:
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.
18 U.S.C. § 3664(k). Here, to invoke § 3664(k), defendant must identify a material change in her economic circumstances. She, however, did not identify a material change in her economic circumstances. As discussed above, at the time of sentencing, defendant-despite owning and managing a restaurant-had a negative net worth because of her debt. There were no allegations presented to the court that a material change in defendant's economic circumstances occurred ...