United States v. Flemons

PER CURIAM: * In 2002, Michael Flemons was convicted of conspiracy to commit health care fraud and multiple counts of aiding and abetting health care fraud. 1 He was ordered to pay approximately $2.7 million in restitution. Once in prison, Flemons joined the Bureau of Prisons’ Inmate Financial Responsibility Program (IFRP). 2 Flemons alleges that the amount he is required to pay under the program was increased, subsequent to his initial classification, to an unreasonable amount given his financial condition. Flemons filed a pro se “Motion to Modify Restitution Payment Schedule” asking the court to modify its restitution order by imposing a reasonable payment schedule. He did not seek to have his restitution obligations terminated either permanently or during his incarceration. The district court responded to Flemons’ motion by letter and “decline[dj” to adjust his restitution payment. Flemons appealed, and the Government opted not to participate in the appeal. We address sua sponte our jurisdiction. Although an unusual method of disposition, under these circumstances, we conclude that there is an appealable final order. The court’s letter, a copy of which appears in the record, specifically addressed Flemons’ motion and declined to grant relief. “As a general rule, a final *369 judgment terminates litigation on the merits and leaves the district court with nothing to do except execute the judgment.” 3 The corresponding docket sheet entries, while wanting, reflect in the first entry that the letter was sent to Flemons, and in a second entzy, that the letter “terminated” Fleznons’ motion. The text of the letter makes clear that the court was denying relief. Neither party was arguably misled or prejudiced by the disposition. Were we to diszniss for a want of jurisdiction, “the district court would siznply [eiz-ter a formal order], frozn which a tiznely appeal would then be takezz. Wheels would spin for no practical puzpose.” 4 Turning to the mezits of Flemons’ motion, 18 U.S.C. § 3664(k) provides that [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 eiz-cuznstances that might affect the defendant’s ability to pay restitution.... The Attorney General shall certify to the court that the victim or victims owed restitution by the defendant have been notified of the change iiz circumstances. Upon receipt of the notification, the court may, on its own motion, or the motion of any paz'ty, including the victim, adjust the payment schedule, or require iznmediate paymezzt in full, as the interests of justice require. To the extent Flemons is attempting to attack the terms of the restitution order as originally imposed by the district court or its legality, this motion is not a proper vehicle to do so. 5 Rather, we are concerned only with whether Flemons deznon-strated a material change in circumstances such that it was error for the distzict court not to adjust his payment schedule. According to his motion, the amouizt of Fleznons’ IFRP payment is such that he has had to have family and friends send him znoney so that he can meet the obligation. Moreover, he claims that the BOP raised his monthly payzneizt based on a ozze-time gift from his rnothez" libez'ally construed, his financial circumstances “changed.” On this record, we are unable to review meaningfully Flemons’ claizn. The record essentially coznprises in toto Flemons’ pro se three-page motion and five-page appellate brief. The district court denied Fleznons’ motion without znaking any fhzdings or providing any reasons. 6 It is unclear whether the district court understood Flemons’ znotion to be attacking the aznoizzzt of the restitution award or simply requestizzg a znodification of the payizzezzt schedule. No hearing was held before the district court, and the motion was not refezred to a zzzagistrate judge. Nor did the Govez-zzment respond to Flemons’ motion. Without a fuller and more reliable picture of Fleznons’ claizn, and given the quasi-coercive nature of the IFRP6 7 and that we *370 cannot dismiss out of hand his allegation of changed circumstances, 8 it would be imprudent for us to render a decision. 9 We express no opinion as to the merits of Flemons’ motion. Accordingly, we VACATE the district court’s order and REMAND for further proceedings. Footnotes [*] Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5tii Cir. R. 47.5.4. [1] See United States v. Flemons, 58 Fed.Appx. 596 (5th Cir.003) (per curiam) (unpublished) (affirming Flemons' convictions). [2] See 28 C.F.R. §§ 545.10, 545.11. [3] See United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762, 764 (5th Cir. 1996). [4] Bankers Trust Co. v. Mallis, 435 U.S. 381, 385, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam). [5] See United States v. Hatten, 167 F.3d 884 (5th Cir. 1999). [6] See McIncrow v. Harris County, 878 F.2d 835 (5th Cir. 1989) (" ‘When we have no notion of the basis for a district court's decision, because its reasoning is vague or simply left unsaid, there is little opportunity for effective review. In such cases, we have not hesitated to remand the case for an illumination of the court's analysis through some formal or informal statement of reasons.’ ” (quoting Myers v. Gulf Oil Corp., 731 F.2d 281, 284 (5th Cir. 1984))). [7] See 28 C.F.R. § 545.11(d) (detailing possible sanctions for a prisoner who either declines to "participate in the financial responsibility *370 program or to comply with the provisions of his financial plan”). [8] See Hatten, 167 F.3d at 887 ("As a practical matter, Hatten’s motivation in filing the motion appears to have been to contest the amounts that the TJSPO was requiring him to pay. If Hatten cannot meet the payment schedule established for him, his proper course of action is to petition the district court to modify its restitution order.”). We note that the statute cited to in Hatten was 18 U.S.C. § 3663(g), which was superceded by § 3664(k). We see no reason why a different conclusion should obtain under § 3664(k). [9] Cf. Madison v. Parker, 104 F.3d 765, 769 (5th Cir.1997) ("Unfortunately, the record lacks significant information as to whether Madison was eligible for mandatory supervised release. Therefore, we cannot determine whether he was entitled to due process until sufficient facts have been revealed. Accordingly, we vacate the judgment of the district court and remand this case for further proceedings.”).