Filed: Oct. 24, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-12033 Date Filed: 10/24/2014 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-12033 Non-Argument Calendar _ D.C. Docket No. 1:10-cr-00094-JOF-LTW-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BRIAN ALDRICH DUPREE, Defendant-Appellant. _ No. 13-14607 Non-Argument Calendar _ D.C. Docket No. 1:10-cr-00094-JOF-LTW-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus Case: 13-12033 Date Filed: 10/24/2014 Page: 2 of 8 BRIAN ALD
Summary: Case: 13-12033 Date Filed: 10/24/2014 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-12033 Non-Argument Calendar _ D.C. Docket No. 1:10-cr-00094-JOF-LTW-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BRIAN ALDRICH DUPREE, Defendant-Appellant. _ No. 13-14607 Non-Argument Calendar _ D.C. Docket No. 1:10-cr-00094-JOF-LTW-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus Case: 13-12033 Date Filed: 10/24/2014 Page: 2 of 8 BRIAN ALDR..
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Case: 13-12033 Date Filed: 10/24/2014 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12033
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-00094-JOF-LTW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN ALDRICH DUPREE,
Defendant-Appellant.
________________________
No. 13-14607
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-00094-JOF-LTW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
Case: 13-12033 Date Filed: 10/24/2014 Page: 2 of 8
BRIAN ALDRICH DUPREE,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(October 24, 2014)
Before WILSON, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
In these consolidated appeals, Brian Aldrich Dupree challenges pro se two
orders modifying an order of restitution that had been entered in his criminal case
following his conviction for conspiring to defraud the United States. Dupree argues
that the district court lacked jurisdiction to adjust the order of restitution; the
adjusted order impermissibly delegated to the Bureau of Prisons authority to
establish a payment schedule; and the district court lacked jurisdiction to amend
the adjusted order. Although the district court lacked jurisdiction to amend the
adjusted order after it had been appealed by Dupree, see Shewchun v. United
States, 797 F.2d 941, 942 (11th Cir. 1986), the district court had jurisdiction to
enter the adjusted order, 18 U.S.C. § 3664(k). But we vacate that order because the
district court delegated to the Bureau the judicial function of establishing a
payment schedule. See United States v. Prouty,
303 F.3d 1249, 1255 (11th Cir.
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2002). We vacate the amended and adjusted orders of restitution, and we remand
for the district court to enter an order “specifying . . . the manner in which, and the
schedule according to which, [his] restitution is to be paid,” 18 U.S.C.
§ 3664(f)(2).
Dupree received inconsistent information about when to commence paying
his restitution. Dupree’s written plea agreement provided that “[f]ull restitution[]
[would be] due and payable immediately[] to all victims of the offense(s) and
relevant conduct.” But during the change of plea hearing, the district court told
Dupree that restitution “[would] be set up as a condition of your supervised
release.” Later, during the sentencing hearing, the district court said that “the
probation office will set reasonable amounts so that [Dupree] will owe 25 percent
of any gross income that [he] will have in excess of $15,000 a year computed
monthly and payable monthly.”
The order of restitution provided that the probation office would establish
Dupree’s payment schedule. In its final judgment, the district court ordered the
“U.S. Probation Office [to] set a reasonable repayment plan for restitution which
shall include twenty-five percent (25%) of defendant’s gross income in excess of
$15,000.00 per year which shall be computed and paid in monthly installments.”
Dupree appealed, and this Court affirmed after granting his attorney’s motion to
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withdraw, Anders v. California, 386 U.S. 738,
87 S. Ct. 1396 (1967). United States
v. Dupree, 457 Fed. App’x 867 (11th Cir. 2012).
Dupree twice moved to modify the order of restitution. While his direct
appeal was pending, Dupree moved for an “order [stating] that [he is] allowed to
pay restitution directly, freely and voluntarily” by submitting “NOT LESS THAN
$25.00 per cal[e]ndar quarter[,] paid directly to the United States District Court.”
And Dupree submitted an affidavit stating that he had entered prison depleted of
assets, but he had since participated in a work detail for which he was paid “not in
excess of $15.00 per month.” Later, Dupree filed a motion for clarification in
which he complained that prison officials were collecting restitution payments
from his prison account. The district court denied Dupree’s two motions.
On April 18, 2013, the district court adjusted Dupree’s order of restitution.
See 18 U.S.C. § 3664(k). The adjusted order provided that restitution was due “in
full immediately” and that Dupree had to “make restitution payments from any
wages he may earn in prison in accordance with the Bureau of Prisons Financial
Responsibility Program.” The adjusted order also provided that “[a]ny portion of
the restitution that is not paid in full at the time of [Dupree’s] release from
imprisonment shall become a condition of supervision and be paid at the monthly
rate of $150 plus 25% of [his] gross income in excess of $1,250 per month.”
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Dupree filed a notice of appeal challenging the adjusted order. The district
court treated the filing as a motion for reconsideration and granted relief in part.
The district court ruled that it would amend its adjusted order in two ways: to
specify a payment schedule because the adjusted order failed to “set forth the
timing and amount of [Dupree’s] restitution payments, instead leaving that to the
Bureau of Prisons’ discretion”; and to specify that Dupree should “begin making
restitution payments immediately” because the original order of restitution “was
silent as to when Dupree was to begin making restitution payments” and there was
a statutory presumption that payments were due “immediately . . . unless . . . the
court provide[d] for payment on a date certain or in installments,” 18 U.S.C.
§ 3572(d)(1).
After this Court docketed Dupree’s notice of appeal, the district court
amended its adjusted order of restitution. The amended order provided that
“restitution shall be paid immediately,” but if Dupree was unable to comply, he
was required to “begin making payments amounting to 30% of any wages he may
earn in prison” effective “immediately.” The amended order also provided that,
“[a]ny portion of the restitution that . . . [remained] at the time of [Dupree’s]
release from imprisonment shall become a condition of supervision and be paid at
the monthly rate of $150 plus 25% of [his] gross income in excess of $1,250 per
month ($15,000 per year).” Dupree appealed that order.
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The district court lacked jurisdiction to amend its adjusted order of
restitution. “Subject to exceptions not relevant here, ‘the filing of a notice of appeal
is an event of jurisdictional significance—it confers jurisdiction on the court of
appeals and divests the district court of its control over the aspects of the case
involved in the appeal.’” United States v. Diveroli, 729 F.3d 1339, 1341 (11th Cir.
2013) (alteration omitted) (quoting United States v. Tovar–Rico,
61 F.3d 1529,
1532 (11th Cir. 1995)). After the district court entered its adjusted order, Dupree
filed a written notice of appeal. Although the district court treated Dupree’s filing
as a motion for reconsideration, it was plainly a notice of appeal, and we docketed
it accordingly. The filing is captioned as a “notice of appeal,” and it states
unambiguously that Dupree is “tender[ing] his notice to appeal to the Court of
Appeals of the Eleventh Circuit the . . . Judgment . . . dated April 18, 2013,” under
Rule 4 of the Federal Rules of Appellate Procedure. Dupree’s written notice of
appeal divested the district court of jurisdiction to amend the adjusted order.
The district court had jurisdiction to adjust the order of restitution. Section
3664(k) provides that, if a defendant submits notice “of [a] material change in [his]
economic circumstances that might affect [his] ability to pay restitution,” the
district court “may, on its own motion, . . . adjust the payment schedule, or require
immediate payment in full, as the interests of justice require.” 18 U.S.C. § 3664(k).
The district court adjusted the order of restitution after receiving notice from
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Dupree that his financial situation had changed. Although the adjusted order does
not mention the change in Dupree’s economic circumstances, his motion and
accompanying affidavit state that he had been penniless when he entered prison,
but he had since joined a work detail and wanted to use his earnings to make
restitution payments while he was incarcerated. In the light of that information, the
district court had authority to adjust the order of restitution to reflect the “bona fide
change in [Dupree’s] financial condition.” See Cani v. United States, 331 F.3d
1210, 1215 (11th Cir. 2003).
We nonetheless are required to vacate the adjusted order. The Mandatory
Victims Restitution Act states that “the court shall . . . specify in the restitution
order the manner in which, and the schedule according to which, the restitution is
to be paid,” 18 U.S.C. § 3664(f)(2), and we have held that this judicial duty is
nondelegable, Prouty, 303 F.3d at 1255. Dupree argues, and we agree, that the
district court delegated its duty to establish a payment schedule by adopting the
payment schedule devised by the Bureau. The district court later acknowledged
that its adjusted order was invalid because it “[did] not set forth the timing and
amount of [Dupree’s] restitution payments, instead leaving that to the Bureau of
Prisons’ discretion.” And we notice that the record does not reflect that Dupree
complied with his duty to notify the Attorney General of the change in his
economic circumstances or that the Attorney General complied with its duty to
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certify to the district court that Dupree’s victims were notified of the change in his
economic circumstances. 18 U.S.C. § 3664(k).
We VACATE the amended and adjusted orders of restitution, and we
REMAND for the district court to consider Dupree’s ability to make installment
payments and to enter an order that establishes an amount of and schedule for his
restitution payments.
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