UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Criminal Action No. 12-55 (RWR) ) LATARSHA SMALL, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION AND ORDER

Defendant LaTarsha Small was sentenced to 42 months in

prison after she pled guilty to two counts of theft concerning

programs that receive federal funds, and was ordered to pay

restitution. Small now moves to change the balance of her

incarceration to in-home confinement, and to amend the court’s

restitution order. 1 Small is entitled to have the portion of her

restitution order mandating payment through the Bureau of

Prisons amended. However, because Small has not demonstrated

that she is entitled to have her prison term changed or her

restitution schedule recalculated, Small’s motions will

otherwise be denied.

1 She has also moved for leave to proceed in forma pauperis because she cannot afford to pay a docketing fee. An inmate filing to modify her sentence is not assessed a docketing fee. The in forma pauperis motion will be denied as moot. - 2 -

BACKGROUND

For several years, Small was the grants and accounting

manager for My Sister’s Place, a non-profit corporation that

aids female victims of domestic violence and their children.

Thereafter, Small was the accountant and payroll specialist for

the International Crisis Group, an international non-profit

organization that is involved with preventing and resolving

conflicts around the world. During her time at both My Sister’s

Place and the International Crisis Group, Small embezzled funds

from the companies for her personal use.

Small pled guilty to two counts of theft concerning

programs receiving federal funds, in violation of

(a)(1)(A). On November 9, 2012, Small was sentenced to 42

months on Count One and a concurrent sentence of 42 months on

Count Two. Small’s final judgment assessed against her

$164,146.23 in restitution payable immediately, and directed:

“You shall make payments on the special assessment and

restitution through your participation in the Bureau of Prisons’

Inmate Financial Responsibility Program [(“IFRP”)].” Judgment

at 4. The judgment ordered Small to pay the balance of any

restitution owed at a rate of no less than $100 per month.

. Small did not appeal the sentence.

Small now moves to change her remaining term of

incarceration to home confinement, contending that there are - 3 -

“mitigating circumstances of a kind and to a degree” that

justify changing her sentence. Mot. to Change Method by Which

Balance of Sentence is to be Served (“Mot. to Amend Sentence”)

at 2. The government opposes, arguing that as Small’s motion

should be construed as a motion to reduce her sentence, none of

the bases for reducing a sentence under

(c) is

applicable. Govt.’s Consolidated Oppn. to Def.’s Pro Se Mots.

to Change Method by Which Balance of Sentence is Served and for

Amended Restitution Order (“Govt.’s Oppn.”) at 1.

Small also moves to amend her restitution order, alleging

that the court impermissibly delegated to the Bureau of Prisons

the responsibility of determining a payment schedule. Motion

for Amended Restitution Order (“Mot. to Amend Rest.”). Small

requests that the court order that she pay $25 per quarter for

restitution.

. The government argues that the

restitution order was proper and that the court cannot intervene

in the payment schedule set by the IFRP. Govt.’s Supplemental

Mem. in Oppn. to Def.’s Mot. for Amended Restitution Order at 7.

DISCUSSION

I. MOTION TO CHANGE SENTENCE TO HOME CONFINEMENT

Small asks that the court “chang[e] the method by which the

balance of her sentence is served by allowing her to serve the

remaining sentence on home confinement.” Mot. to Amend Sentence

at 1. Small, however, cites no authority to support her - 4 -

request. The government contends that her motion must be

considered as “one seeking to reduce her sentence,” and is

therefore governed by

(c). Govt.’s Oppn. at 4.

Small does not contest this argument.

“Under

(c) a court may modify a sentence

only in three circumstances: (1) on motion of the Bureau of

Prisons, (2) ‘to the extent otherwise expressly permitted by

statute or by Rule 35 of the Federal Rules of Criminal

Procedure,’ and (3) to reflect a post-sentence reduction in the

applicable sentencing guidelines.” United States v. Morris,

(D.C. Cir. 1997) (quoting

(c)).

In turn, Rule 35 of the Federal Rules of Criminal Procedure

permits modification to correct an “arithmetical, technical, or

other clear error” within 14 days, or, upon motion from the

government, for “substantial assistance in investigating or

prosecuting another person.” Fed. R. Crim. P. 35. There are no

other grounds for modification of a sentence. See Morris,

; see also United States v. Apple, No. 3:10-CR-322-L,

, at *2 (N.D. Tex. Oct. 11, 2012) (finding that

the Federal Rules of Criminal Procedure “do not allow for”

modification of a sentence “based upon substantive grounds . . .

[such as the defendant’s] health conditions, which were already

in existence and known to the court at the time he was

sentenced”). - 5 -

None of the conditions in § 3582(c) applies here. The

Bureau of Prisons has not made a motion to modify Small’s

sentence, nor has the government moved under Rule 35 to reduce

Small’s sentence for substantial assistance. Small’s motion

comes more than 14 days after the sentence, and does not allege

an arithmetical, technical, or other clear error. Small also

does not allege that there has been a change in the applicable

sentencing guidelines that would justify reducing her sentence,

nor does she point to any other statutory basis for

modification. Accordingly, there is no legal basis for

modifying Small’s sentence, and her motion will be denied. 2

II. MOTION TO AMEND RESTITUTION ORDER

According to Small,

(f)(2) requires that a

court set a payment schedule for the defendant to discharge her

restitution obligation, including a payment schedule for the

defendant’s incarceration period. Mot. to Amend Rest. at 1.

Small alleges that “[a]s a result” of “the Court[’s] fail[ure]

2 In addition to her request to change her sentence to one of home confinement, Small briefly discusses her “opinion that the Bureau of Prisons is failing to provide me with adequate care.” Mot. to Amend Sentence at 2. To the extent Small is challenging the conditions of her confinement, the Prison Litigation Reform Act requires that she first exhaust her administrative remedies. 42 U.S.C. § 1997e(a). Small has not alleged that she has exhausted any administrative remedies. Small also “contends that she was not sentenced to a medical facility[,]” Mot. to Amend Sentence at 2, but makes no request with respect to this statement. Accordingly, no request for relief will be inferred. - 6 -

to set a payment schedule,” she “has been required to pay under

the Inmate Financial Responsibility Program, instead of paying

restitution after release from prison.” Id. at 1.

Inasmuch as Small is challenging the requirement in her

judgment that she participate in the IFRP, her motion to amend

her restitution order will be granted to reflect the fact that

participation in the IFRP is voluntary. See United States v.

Godoy,

(D.C. Cir. 2013); see also

. While her non-participation may result in losing

privileges, see

(d), the court cannot order

her to participate in the IFRP.

However, the court here did determine a payment schedule as

a condition of Small’s supervision after incarceration. See

Judgment at 5 (requiring the Small to “pay the balance of any

restitution owed at a rate of no less that $100 each month” as

an additional standard condition of supervision). Further,

Small’s argument seems to focus on the “undue financial stress”

that the current payment schedule imposes on her family, and her

requested relief is for the court to reduce her payment

obligation to $25 per quarter. Mot. to Amend Rest. at 1-2. As

such, Small appears to be requesting that the court determine

the restitution payment amounts that Small is required to pay

during her incarceration under the IFRP, rather than challenging

the court’s failure to determine a schedule of payment. - 7 -

In any event, while some circuits have held that a court

must determine the schedule of payment during incarceration,

see, e.g., Ward v. Chavez,

(9th Cir. 2012), the

D.C. Circuit has not. The D.C. Circuit has held that it is not

plain error for a district court to have failed to determine the

payment schedule for a defendant who participates in the IFRP.

United States v. Baldwin,

(D.C. Cir. 2009)

(citing United States v. Sawyer,

(7th Cir.

2008)). In fact, a district court may be barred from imposing

such a payment plan for defendants that participate in the IFRP.

See id. at 492 (explaining that the Seventh Circuit’s holding in

Sawyer indicates that a district court cannot impose terms of

restitution payments made through the IFRP).

The IFRP “operates ‘under the exclusive control and

authority of the Executive Branch.’” United States v. Ayers-

Zander, Criminal Action No. 11-280 (RWR),

, at *1

(D.D.C. June 7, 2013) (quoting Baldwin,

). Small

has not shown that she has exhausted BOP administrative remedies

to challenge her IFRP restitution payment amount before seeking

judicial relief. See United States v. Rush,

(D.D.C. 2012) (citing

(a)). Further,

even if she 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 - 8 -

rather a petition under

in the district where

[the defendant] is serving her sentence.” Ayers-Zander,

, at *1 (citing United States v. Diggs,

, 319 n.1 (5th Cir. 2009); Rush,

;

United States v. Locke, Criminal Action No. 09-259 (JDB),

, at *3 n.5 (D.D.C. Apr. 9, 2012)); see also Diggs,

, 319 n.1 (“All other circuits to look at this

issue agree that prisoners challenging their IFRP payment plans

must do so under § 2241.”).

Lastly, Small has not alleged a “material change” in her

economic circumstances that justifies modifying a restitution

order under

(k). Accordingly, Small has not

shown that she is entitled to the court reducing her restitution

payment obligation under the IFRP, and her motion to amend the

restitution order in that way will be denied.

CONCLUSION

Small is entitled to have her restitution order modified by

deleting the sentence requiring her to make restitution payments

through the IFRP. However, Small has failed to demonstrate that

she is entitled to have her prison term changed or her

restitution payments recalculated. Accordingly, it is hereby

ORDERED that Small’s motion [22] to change the method by

which the balance of her sentence is served be, and hereby is,

DENIED. It is further - 9 -

ORDERED that Small’s motion [22] for leave to proceed in

forma pauperis be, and hereby is, DENIED as moot. It is further

ORDERED that Small’s motion [23] to amend her restitution

order be, and hereby is, GRANTED IN PART and DENIED IN PART.

The sentence in the judgment requiring Small to make restitution

payments through her participation in the Bureau of Prisons’

Inmate Financial Responsibility Program is hereby stricken. The

motion is otherwise denied. It is further

ORDERED that the government’s motion [28] for leave to late

file a consolidated response to Small’s motions be, and hereby

is, GRANTED nunc pro tunc.

SIGNED this 13th day of January, 2014.

__________/s/________________ RICHARD W. ROBERTS Chief Judge