United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN, UNITED STATES DISTRICT JUDGE
criminal case is before the Court on defendant's motion
to modify this Court's restitution order [Doc. 212]. The
government requested additional time to respond in order to
consult with defendant's counsel in an effort to come to
an agreement regarding defendant's payment schedule [Doc.
213]. However, the parties evidently could not come to an
agreement, and the government responded in opposition to
defendant's motion [Doc. 217]. Defendant then replied
. For the reasons discussed below, the Court will deny
Court may modify a restitution order only when authorized by
statute. See United States v. May, 500 Fed.Appx.
458, 460 (6th Cir. 2012) (“Once a court sentences a
criminal defendant, it generally has jurisdiction to continue
hearing related issues only when authorized by statute or
rule.”); see also Carlisle v. United States,
517 U.S. 416, 428 (1996) (rejecting the invocation of a
court's “inherent supervisory authority” to
modify a verdict of conviction absent any statutory or rule
authority). One avenue by which the Court may modify a
restitution order after sentencing-and the one upon which
defendant relies-is outlined in 18 U.S.C. § 3664(k).
That section authorizes courts to “adjust the payment
schedule, or require immediate payment in full, as the
interests of justice require” in the event of a
“material change in the defendant's economic
circumstances that might affect the defendant's ability
to pay restitution.” § 366(k). Notably, this
section authorizes the court only to modify the
defendant's payment schedule, not to alter the
defendant's total restitution obligation. United
States v. Mandel, 179 Fed.Appx. 965, 966-67 (7th Cir.
2006) (noting that § 3664(k) “permits a defendant
to seek a revised payment schedule, but not a reduced
obligation”); United States v. Farris, No.
1:02-cr-173-2, 2006 WL 2022526, at *1 (W.D. Mich. July 17,
2006). The defendant bears the burden of proving, “by a
preponderance of the evidence, that . . . [his] current
economic condition warrants such an adjustment.”
United States v. Baird, No. 3:03-cr-91, 2009 WL
5170198, at *3 (E.D. Tenn. Dec. 17, 2009) (citing §
support of his motion, defendant first submits that
“the victim no longer wishes to be compensated”
despite acknowledging that “[t]he case law is clear
that a victim cannot waive restitution, ” that
restitution “is penal rather than compensatory in
nature, ” and that a victim's wishes are not
“ground[s] for disposing of the obligation to pay
restitution” [Doc. 212 pp. 4-5]. Defendant's
assessment of the case law is correct. See United States
v. Bearden, 274 F.3d 1031, 1040-41 (6th Cir. 2001)
(“[A] private settlement between a criminal wrongdoer
and his victim releasing the wrongdoer from further liability
does not preclude a district court from imposing a
restitution order for the same underlying wrong.”);
see also Kelly v. Robinson, 479 U.S. 36, 52 (1986)
(indicating that restitution ordered as part of a criminal
sentence “is concerned . . . with punishing the
offender” rather than with compensating the victim).
Accordingly, even if the victim in this case did disclaim
restitution-a fact disputed by the government-it would not
justify or permit the Court to modify its restitution order.
also claims that there has been a material change in his
ability to pay restitution because his income is based on a
percentage of his employer's sales, causing his income to
fluctuate from month to month. In light of this, defendant
requests that this Court modify its restitution order
requiring him to pay the restitution amount in a lump sum, to
require him instead to make monthly payments of $1, 000 in
order “to better plan for his monthly expenses”
[Doc. 212 p. 6]. The government opposes this payment plan,
submitting that defendant cannot be relied upon to make
monthly payments based on his years of nonpayment, despite
the substantial income he draws from his employment [Doc. 217
record confirms the government's assertion that defendant
has not made any voluntary restitution payments since April,
2014, when his term of supervised release expired
[see Doc. 212-1 p. 3]. This led the government to
seek two Writs of Continuing Garnishment to obtain a
percentage of defendant's salary from Gray Epperson
Automotive, LLC and Cantrell & Associates, Inc. [Docs.
199, 209]. Defendant's income from these entities totaled
over $350, 000 last year [Docs. 217-2]. Defendant counters
this fact by asserting that he has a “substantial
amount of debt” [Doc. 218 p. 2], but provides no
documentation to support that assertion.
Court finds that defendant has not shown, by a preponderance
of the evidence, such a dramatic change in his economic
circumstances as to justify the modification he seeks.
Although defendant's income may vary from one month to
another, the record establishes that defendant nonetheless
draws substantial income from his employer each month
[see Doc. 217-3]. Defendant's years of
nonpayment despite this income do not reflect well on his
acceptance of responsibility or remorse for his actions.
Modification of defendant's restitution obligation under
such circumstances would be improper at this time, in light
of the purposes of sentencing and of restitution in
particular. See Bearden, 274 F.3d at 1041.
reasons stated, defendant's motion to modify the
restitution order ...