FILED United States Court of Appeals Tenth Circuit
July 13, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
ANDRE LAMONT THURSTON,
Petitioner - Appellant, No. 10-3053 v. (D. Kansas) CLAUDE CHESTER, Warden, USP- (D.C. No. 5:09-CV-03028-RDR) Leavenworth,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Andre Lamont Thurston, a federal prisoner appearing pro se, appeals the
dismissal by the United States District Court for the District of Kansas of his
application for relief under 28 U.S.C. § 2241. He also appeals the denial of his
motion for reconsideration. He claims that he will suffer the effects of not
participating in the Federal Bureau of Prisons’ Inmate Financial Responsibility
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Program (IFRP) because the Bureau has improperly interpreted the regulations
governing the IFRP. The district court rejected his claim and he appeals. We
affirm.
On July 1, 1996, Mr. Thurston was sentenced to 360 months’
imprisonment, five years’ supervised release, a $50 criminal assessment, $3,000
restitution, and a $17,100 fine for conspiracy to possess with intent to distribute
cocaine base (crack), in violation of 21 U.S.C. § 846. He has paid the assessment
and restitution in full, but has a balance of over $14,000 due on his fine.
The purpose of the IFRP is to “encourage[] each sentenced inmate to meet
his or her legitimate financial obligations.” 28 C.F.R. § 545.10. Under the
program, prison staff assist an inmate in developing a financial plan to meet those
obligations, and monitor the inmate’s progress under the plan. See id. § 545.11.
An inmate is responsible for maintaining progress in fulfilling the financial
obligations of the plan. See id. § 545.11(b). “Payments may be made from
institution resources or non-institution (community) resources.” 1 Id.
1 28 C.F.R. § 545.11(b) reads in its entirety:
(b) Payment. The inmate is responsible for making satisfactory progress in meeting his/her financial responsibility plan and for providing documentation of these payments to unit staff. Payments may be made from institution resources or non-institution (community) resources. In developing an inmate’s financial plan, the unit team shall first subtract from the trust fund account the inmate’s minimum payment schedule for UNICOR or non–UNICOR work assignments, set forth in paragraphs (b)(1) and (b)(2) of this section. (continued...)
-2- Mr. Thurston arrived at the United States Penitentiary at Leavenworth,
Kansas, on June 4, 2008. He began with $171.74 in his inmate trust account. On
June 12, 2008, he signed a contract to participate in the IFRP; his plan called for
quarterly payments of $25 to be withdrawn from his account beginning in
September 2008. He had no institution work assignment, and by the time he was
to make his first payment, he had depleted his account balance to $.79. He did
not make his first payment and was placed on refusal status on October 1, 2008.
He filed this suit on January 29, 2009.
The penalties for not participating in the IFRP include (1) notification to
the Parole Commission of the refusal to participate, (2) ineligibility for furlough,
(3) ineligibility for performance, bonus, or vacation pay, (4) ineligibility for work
1 (...continued) The unit team shall then exclude from its assessment $75.00 a month deposited into the inmate’s trust fund account. This $75.00 is excluded to allow the inmate the opportunity to better maintain telephone communication under the Inmate Telephone System (ITS).
(1) Ordinarily, the minimum payment for non-UNICOR and UNICOR grade 5 inmates will be $25.00 per quarter. This minimum payment may exceed $25.00, taking into consideration the inmate’s specific obligations, institution resources, and community resources.
(2) Inmates assigned grades 1 through 4 in UNICOR ordinarily will be expected to allot not less than 50% of their monthly pay to the payment process. Any allotment which is less than the 50% minimum must be approved by the Unit Manager. Allotments may also exceed the 50% minimum after considering the individual’s specific obligations and resources.
-3- detail outside the facility in which he is incarcerated, (5) ineligibility for
UNICOR (which is a federal work program designed to “employ and provide job
skills training” to federal inmates, UNICOR, FPI General Overview FAQs,
http://www.unicor.gov/about/faqs/faqsgeneral.cfm), (6) more stringent monthly
commissary spending limits, (7) quartering in the lowest housing status, (8)
ineligibility for community-based programs, (9) ineligibility for a release gratuity,
and (10) ineligibility for an incentive for participation in a residential drug-
treatment program. See 28 C.F.R. § 545.11(d). We question whether the
implementation of these penalties would change the conditions of Mr. Thurston’s
incarceration enough to form the basis for a cognizable habeas claim. See Glaus
v. Anderson, 408 F.3d 382, 387–88 (7th Cir. 2005). But because that issue is not
jurisdictional, we shall address the merits of Mr. Thurston’s contentions.
Mr. Thurston claimed in his § 2241 application (1) that the Bureau of
Prisons misinterpreted IFRP regulations and (2) that his sentencing court
improperly delegated the setting of his IFRP payment obligations. The Bureau’s
alleged misinterpretation of the regulations is the only issue he raises on appeal.
Mr. Thurston reads 28 C.F.R. § 545.11(b) to say that when he is
“unassigned to any job and has no institutional income,” Aplt. Br. at 4, the
Bureau may not require him to satisfy his obligations under an IFRP payment plan
to which he agreed, and may not subject him to sanctions for failing to make
timely payments. He asserts that § 545.11(b) allows payments to be withheld
-4- from his account only if he has a work assignment as described in § 545.11(b)(1)
or (2). He further argues that requiring him to continue to make IFRP payments
would necessarily require him to do so with funds sent to him by his family,
contrary to the intent of the regulations.
Mr. Thurston’s view of the regulations is incorrect.
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FILED United States Court of Appeals Tenth Circuit
July 13, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
ANDRE LAMONT THURSTON,
Petitioner - Appellant, No. 10-3053 v. (D. Kansas) CLAUDE CHESTER, Warden, USP- (D.C. No. 5:09-CV-03028-RDR) Leavenworth,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Andre Lamont Thurston, a federal prisoner appearing pro se, appeals the
dismissal by the United States District Court for the District of Kansas of his
application for relief under 28 U.S.C. § 2241. He also appeals the denial of his
motion for reconsideration. He claims that he will suffer the effects of not
participating in the Federal Bureau of Prisons’ Inmate Financial Responsibility
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Program (IFRP) because the Bureau has improperly interpreted the regulations
governing the IFRP. The district court rejected his claim and he appeals. We
affirm.
On July 1, 1996, Mr. Thurston was sentenced to 360 months’
imprisonment, five years’ supervised release, a $50 criminal assessment, $3,000
restitution, and a $17,100 fine for conspiracy to possess with intent to distribute
cocaine base (crack), in violation of 21 U.S.C. § 846. He has paid the assessment
and restitution in full, but has a balance of over $14,000 due on his fine.
The purpose of the IFRP is to “encourage[] each sentenced inmate to meet
his or her legitimate financial obligations.” 28 C.F.R. § 545.10. Under the
program, prison staff assist an inmate in developing a financial plan to meet those
obligations, and monitor the inmate’s progress under the plan. See id. § 545.11.
An inmate is responsible for maintaining progress in fulfilling the financial
obligations of the plan. See id. § 545.11(b). “Payments may be made from
institution resources or non-institution (community) resources.” 1 Id.
1 28 C.F.R. § 545.11(b) reads in its entirety:
(b) Payment. The inmate is responsible for making satisfactory progress in meeting his/her financial responsibility plan and for providing documentation of these payments to unit staff. Payments may be made from institution resources or non-institution (community) resources. In developing an inmate’s financial plan, the unit team shall first subtract from the trust fund account the inmate’s minimum payment schedule for UNICOR or non–UNICOR work assignments, set forth in paragraphs (b)(1) and (b)(2) of this section. (continued...)
-2- Mr. Thurston arrived at the United States Penitentiary at Leavenworth,
Kansas, on June 4, 2008. He began with $171.74 in his inmate trust account. On
June 12, 2008, he signed a contract to participate in the IFRP; his plan called for
quarterly payments of $25 to be withdrawn from his account beginning in
September 2008. He had no institution work assignment, and by the time he was
to make his first payment, he had depleted his account balance to $.79. He did
not make his first payment and was placed on refusal status on October 1, 2008.
He filed this suit on January 29, 2009.
The penalties for not participating in the IFRP include (1) notification to
the Parole Commission of the refusal to participate, (2) ineligibility for furlough,
(3) ineligibility for performance, bonus, or vacation pay, (4) ineligibility for work
1 (...continued) The unit team shall then exclude from its assessment $75.00 a month deposited into the inmate’s trust fund account. This $75.00 is excluded to allow the inmate the opportunity to better maintain telephone communication under the Inmate Telephone System (ITS).
(1) Ordinarily, the minimum payment for non-UNICOR and UNICOR grade 5 inmates will be $25.00 per quarter. This minimum payment may exceed $25.00, taking into consideration the inmate’s specific obligations, institution resources, and community resources.
(2) Inmates assigned grades 1 through 4 in UNICOR ordinarily will be expected to allot not less than 50% of their monthly pay to the payment process. Any allotment which is less than the 50% minimum must be approved by the Unit Manager. Allotments may also exceed the 50% minimum after considering the individual’s specific obligations and resources.
-3- detail outside the facility in which he is incarcerated, (5) ineligibility for
UNICOR (which is a federal work program designed to “employ and provide job
skills training” to federal inmates, UNICOR, FPI General Overview FAQs,
http://www.unicor.gov/about/faqs/faqsgeneral.cfm), (6) more stringent monthly
commissary spending limits, (7) quartering in the lowest housing status, (8)
ineligibility for community-based programs, (9) ineligibility for a release gratuity,
and (10) ineligibility for an incentive for participation in a residential drug-
treatment program. See 28 C.F.R. § 545.11(d). We question whether the
implementation of these penalties would change the conditions of Mr. Thurston’s
incarceration enough to form the basis for a cognizable habeas claim. See Glaus
v. Anderson, 408 F.3d 382, 387–88 (7th Cir. 2005). But because that issue is not
jurisdictional, we shall address the merits of Mr. Thurston’s contentions.
Mr. Thurston claimed in his § 2241 application (1) that the Bureau of
Prisons misinterpreted IFRP regulations and (2) that his sentencing court
improperly delegated the setting of his IFRP payment obligations. The Bureau’s
alleged misinterpretation of the regulations is the only issue he raises on appeal.
Mr. Thurston reads 28 C.F.R. § 545.11(b) to say that when he is
“unassigned to any job and has no institutional income,” Aplt. Br. at 4, the
Bureau may not require him to satisfy his obligations under an IFRP payment plan
to which he agreed, and may not subject him to sanctions for failing to make
timely payments. He asserts that § 545.11(b) allows payments to be withheld
-4- from his account only if he has a work assignment as described in § 545.11(b)(1)
or (2). He further argues that requiring him to continue to make IFRP payments
would necessarily require him to do so with funds sent to him by his family,
contrary to the intent of the regulations.
Mr. Thurston’s view of the regulations is incorrect. To begin with,
§ 545.11(b) does not by its terms limit its applicability to inmates holding work
assignments. See 28 C.F.R. § 545.11(b). Although § 545.11(b) does not state a
minimum payment amount for inmates without work (as do § 545.11(b)(1) and (2)
for inmates who are employed), it contains no suggestion that unemployed
inmates are exempt from making their agreed-to IFRP payments.
We also reject his argument that IFRP payments should not be made from
funds received from an inmate’s family. The regulation states: “The inmate is
responsible for making satisfactory progress in meeting his/her financial
responsibility plan and for providing documentation of these payments to unit
staff. Payments may be made from institution resources or non-institution
(community) resources.” 28 C.F.R. § 545.11(b). Thus, § 545.11(b) “authorize[s]
the Bureau to consider funds received from sources other than prison work in
determining whether an inmate is able to participate in the IFRP.” Pierson v.
Morris, 282 F. App’x 347, 348 (5th Cir. 2008) (unpublished). We see no
indication that family gifts are excluded from the category of “non-institution
(community) resources.” Mr. Thurston points out that $75 per month is exempted
-5- from assessments for the IFRP so that the inmate can maintain telephone contact
with his family; but he fails to explain why it should follow from that exemption
that all family contributions must be exempted.
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz Circuit Judge
-6- UNICOR Online | About UNICOR | FAQs | General Overview Page 1 of 1
Events/Tradeshows Aug 10, 2010 - Aug 12, 2010 GSA SmartPay Atlanta, GA Show Link Home » About UNICOR » FAQs » General Overview Click Here » For All Tradeshows FPI General Overview FAQs Why Buy UNICOR 1. What is Federal Prison Industries (trade name UNICOR)? 2. What is the derivation of the term "UNICOR"? Corporate Overview 3. How much does the program cost taxpayers? FPI Inmate Programs 4. Please provide a FY 2009 "year in review" summary of FPI Contracting Opportunities 1. What is Federal Prison Industries (trade name UNICOR)? Small Business Goals Federal Prison Industries (commonly referred to as FPI, or by its trade name UNICOR), is a wholly-owned government corporation established by the Congress June 23, 1934. Its
rtz/ Purchase/Waiver Procedures & mission is to employ and provide job skills training to the greatest practicable number of Policies inmates confined within the Federal Bureau of Prisons; contribute to the safety and
Ha Ordering/Payment Options security of our Nation’s federal correctional facilities by keeping inmates constructively
L occupied; provide market-quality products and services; operate in a self-sustaining Catalogs & Publications
ris 10. manner; and to minimize FPI’s impact on private sector business and labor.
r Forms
Ha /20 2. What is the derivation of the term "UNICOR"? Schedule of Products & Services “UNICOR” is simply the trade name for Federal Prison Industries, Inc.
dge n 7/6 Board Members 3.How much does the program cost taxpayers?
Ju o Partnerships The corporation is self-sustaining and receives no appropriated funds. Revenues
y Ombudsman/Constituent generated by sales are used to cover the program’s operational expenses. All of FPI’s
d b csary Relations revenues are eventually returned to the community.
e Sales Representatives/Contacts For related information about UNICOR, click on any of the following topics:
iew . Mo st v e A Factory with Fences (retrospective on FPI); FPI’s 2009 Annual Report ;
La rg FPI’s Board of Directors & Management Staff; FPI’s Constituent Relations/Ombudsman;
eo Public Notices, Meeting Minutes
G Procurement
4. Please provide a FY 2009 "year-in-review" summary of FPI Number of Inmate Workers: 18,972 Percent of Eligible Population Employed (medically-able/sentenced): 17% Employment Goal: 25% Inmate Pay Rates: 23 cents to $1.15 per hour Number of Factories: 109 Distribution of FPI Revenues: 80% toward purchase of materials/supplies from private sector vendors; 16% for staff salaries; 4% for inmate pay --------- 100% returned to the private sector
FY 2009 Net Sales: $889.4 million FY 2009 Net Loss: $34.9 million FY 2009 Sales Dollars Spent on Purchases from Private Sector: $576.7 million
Products: Currently FPI produces over 80 products and services for sale to the Federal Government. Click on UNICOR Products & Services to view offerings among seven major product/service groups. Customer Service Public Notices Privacy SiteMap DOJ Accessibility Disclaimer DOJ Legal Policies
http://www.unicor.gov/about/faqs/faqsgeneral.cfm 7/6/2010