United States v. Ayers-Zander

• Court: District Court, District of Columbia
• Decided: June 7, 2013
• Docket: Criminal No. 2011-0280
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________ ) UNITED STATES OF AMERICA, ) ) v. ) ) Criminal Action No. 11-280 (RWR) MARY AYERS-ZANDER, ) ) Defendant. ) __________________________ )

MEMORANDUM ORDER

Mary Ayers-Zander pled guilty to wire fraud, was sentenced

to thirty months imprisonment, and was ordered to repay

$413,651.90 in restitution and make payments on the restitution

through her participation in the Bureau of Prisons’ Inmate

Financial Responsibility Program (“IFRP”). The Bureau of Prisons

(“BOP”) originally required Ayers-Zander to pay $25 per quarter,

but later increased her restitution payment to $97 per month.

Ayers-Zander moves to defer her restitution payments until after

her release from incarceration. She states that she is unable to

pay the $97 per month restitution payment because she does not

earn a sufficient salary in prison to make such a payment. She

offers no factual information, though, to show that she has no

other funds to support such a payment. The government, however,

asserts that the BOP increased her payment after her prison trust

account increased by $1500. Ayers-Zander does not rebut that

assertion. -2-

The IFRP operates “under the exclusive control and authority

of the Executive Branch.” United States v. Baldwin, 563 F.3d

490, 492 (D.C. Cir. 2009). Ayers-Zander has not shown that she

exhausted all available BOP administrative remedies to challenge

her IFRP restitution payment amount before seeking judicial

relief. See United States v. Rush, 853 F. Supp. 2d 159, 162

(D.D.C. 2012) (citing 28 C.F.R. § 542.10(a)). Even if Ayers-

Zander had exhausted all administrative remedies, the proper

method for challenging how BOP is administering the IFRP in her

case may not be a motion to the sentencing court, but rather a

petition under 28 U.S.C. § 2241 in the district where Ayers-

Zander is serving her sentence. See, e.g., United States v.

Diggs, 578 F.3d 318, 319 & n.1 (5th Cir. 2009) (“All other

circuits to look at this issue agree that prisoners challenging

their IFRP payment plans must do so under § 2241.”); Rush, 853 F.

Supp. 2d at 162; United States v. Locke, Criminal No. 09-259

(JDB), 2012 WL 1154084, *3 n.5 (D.D.C. Apr. 9, 2012).

In any event, a court on motion made under 18 U.S.C.

§ 3664(k) may modify a restitution order after a defendant

asserts a “material change” in her economic circumstances. See

18 U.S.C. § 3664(k). “The petitioner bears the burden of proving

that [her] circumstances have changed enough to warrant such a

modification.” Hinton v. United States, Civil Action No. 01-1508

(RMU), 2003 WL 21854935, at *4 (D.D.C. Aug. 5, 2003). However, -3-

Ayers-Zander’s cursory assertion of an inability to pay in the

face of unrebutted contrary evidence does not constitute a

sufficient change in circumstances to justify deferring

restitution payments until after her release. See Locke, 2012 WL

1154084, at *1-2.

Thus, Ayers-Zander has not shown that she is entitled to

relief from the increased restitution payments. Accordingly, it

is hereby

ORDERED that defendant’s motion [33] to modify her

restitution obligation be, and hereby is, DENIED.

SIGNED this 7th day of June, 2013.

/s/ RICHARD W. ROBERTS United States District Judge