USA v. Rumney

• Court: District Court, D. New Hampshire
• Decided: March 21, 1995
• Docket: CR-88-3-1-SD
• Status: Published

Opinion

USA v. Rumney CR-88-3-1-SD 03/21/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 88-3-1-SD

Arthur Rumney

O R D E R

Unhappy with a criminal fine imposed on him, defendant

Arthur Rumney seeks relief by contending that (1) the sentence

was illegal and (2) in any event, payment of the fine should be

deferred until he completes his sentence.

The court considers first the defendant's motion to correct

what he perceives to be an illegal sentence. Document 79. See

Former Rule 35(a), Fed. R. Crim. P.1 The government objects.

Document 82.

Following a jury finding of guilt on the charge of

possession of a firearm by a convicted felon in violation of

former 18 U.S.C. Appendix § 1202(a) (I),2 defendant was sentenced

1Former Rule 35(a), Fed. R. Crim. P. provided: "The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence."

2Repealed subseguent to the defendant's offense, 18 U.S.C. A p p . 1202(a)(1) has been reenacted and recodified at 18 U.S.C. § on May 3, 1988, to imprisonment for a term of 15 years and

ordered to pay a fine of $25,000. His conviction was affirmed on

appeal. United States v. Rumney, 867 F.2d 714 (1st Cir.), cert.

denied, 491 U.S. 908 (1989).

Defendant challenges the interpretation by the Bureau of

Prisons (BOP) of the fine imposed upon him as a "committed" fine.

He contends that the court lacked legal authority to order

payment of such a "committed" fine.

In response, the government argues the defendant is not

entitled to the relief sought because of failure to exhaust his

administrative remedies. The Code of Federal Regulations

(C.F.R.) 545.11(b)(2) sets forth the expectation of participation

by federal prisoners in the Inmate Financial Responsibility

Program, with allocation of not less than 50 percent of the

inmate's pay to the reduction of such financial obligations as

imposed fines, unless a lower allotment is permitted by the

warden of the correctional facility. Failure to participate in

this program results in the receipt by the inmate of not more

than maintenance-level pay, removal from UNICOR, limitation of

commissary privileges, and ineligibility for placement in a

community-based program. 28 C.F.R. § 545.11(d)(3), (5), (6),

922(g)

2 (7); Affidavit of John Sullivan.3 Although the defendant's

monthly earnings have decreased to $5.25, he has received the sum

of $100 per month from outside sources for each of the months of

November and December 1994 and January 1995.

A federal prisoner dissatisfied with the rulings of the

warden and Regional Director is permitted under 28 U.S.C. §

542.15 to further his appeal to the Office of General Counsel.

This latter appeal "is the final administrative appeal in the

Bureau of Prisons." Id.

The defendant here failed to appeal to the General Counsel.

Declaration of Henry J. Sadowski.4 His failure to thus exhaust

his administrative remedies deprives this court of jurisdiction

to consider his challenge to the validity of the fine imposed.

United States v. Levy, 897 F.2d 596, 598 (1st Cir. 1990) .

In a series of letters,5 here construed as a motion to defer

3John Sullivan is the defendant's case manager at FCI Ray Brook, New York. Attached to the government's objection as Exhibit C, his affidavit details defendant's "refused status" for failing to agree to pay 50 percent of his UNICOR earnings toward his imposed fine.

4Henry J. Sadowski is Deputy Regional Counsel of the Northeast Region of BOP. His declaration, attached to the government objection as Exhibit D, states that although plaintiff properly perfected appeals from the warden to the Regional Director, he failed to further appeal from the Regional Director to the General Counsel.

5The letters bear the dates of June 8, 1994, August 5, 1994, and January 22, 1995.

3 payment of a fine, 18 U.S.C. § 3573 (2), 6 defendant seeks the

relief of deferring payment of his fine until completion of his

prison sentence. Again, however, he has failed to exhaust his

administrative remedies and, additionally, the statute which

governs deferment of fine payments may be invoked only by the

government, and not by the defendant. United States v. Linker,

920 F .2d 1 (7th Cir. 1990).

In sum, this court is without authority to either declare

the fine as imposed upon the defendant illegal or order that

payment of the fine be deferred. The defendant's motions must be

and accordingly are herewith denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

March 21, 1995 cc: United States Attorney United States Marshal United States Probation Arthur W. Rumney, pro se

6In relevant part, 18 U.S.C. § 3573(2) provides:

Upon petition of the Government showing that reasonable efforts to collect a fine or assessment are not likely to be effective, the court may, in the interest of justice--

(2) defer payment of a fine or special assessment to a date certain or pursuant to an installment schedule . . . .