Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2009

USA v. David Robinson
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4858




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Recommended Citation
"USA v. David Robinson" (2009). 2009 Decisions. Paper 1245.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1245


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ALD-172                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-4858


                           UNITED STATES OF AMERICA

                                           v.

                                 DAVID ROBINSON,
                                               Appellant.


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           (D.C. Crim. No. 04-cr-00655-1)
                     District Judge: Honorable Berle M. Schiller

                      ____________________________________

                    Submitted on a Motion for Summary Affirmance
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     April 30, 2009

             Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                              (Opinion filed: June 2, 2009)


                                       OPINION




PER CURIAM

      Appellant David Robinson, a federal prisoner incarcerated at the United States

Penitentiary in Lewisburg, Pennsylvania, was convicted of bank robbery in violation of
18 U.S.C. § 2113(a), and possession of heroin by a federal prisoner in violation of 18

U.S.C. § 1791(a)(2). He was sentenced in United States District Court for the Eastern

District of Pennsylvania to a total term of imprisonment of 151 months, to be followed by

a term of supervised release of 5 years. He was ordered to pay a special assessment of

$400.00 and to make restitution in the amount of $5,886.00. We affirmed the judgment

of sentence on direct appeal in United States v. Robinson, 293 Fed. Appx. 958 (3d Cir.

2008), on September 26, 2008. Robinson did not challenge the order of restitution on

direct appeal.

       On October 3, 2008, Robinson filed an item in the sentencing court titled

“Supplemental Filing to Motion To Waive Restitution,” which the District Court treated

as a motion to waive restitution.1 In this one-paragraph motion, Robinson stated that:

                 I present new evidence to the Court, citing a case which has been affirmed
                 in regards to fine & restitution costs involving inmates in the Bureau of
                 Prisons. This case is Soroka v. Daniels, 

(District
                 of Oregon 2006.) Where the Court ruled that the Bureau of Prisons cannot
                 dictate that prisoners participate in the Inmate Federal Responsibility
                 Payment Program (IFRP). Nor should these prisoners be penalized with
                 harse [sic] restrictions if they chose not to participate in this payment
                 program.

(Motion, at 1.) Robinson went on to ask that he not be required to make his restitution

payments until he is released to serve his term of supervised release.

       The Government submitted a response to the motion, noting that Robinson had not



   1
    This “supplemental” motion makes reference to an original motion submitted on
September 22, 2008, but no such motion appears on the docket.

                                               2
complained of a procedural error in the imposition of restitution, and, in any event, an

inmate may not challenge the imposition of restitution in a motion to vacate sentence

under 28 U.S.C. § 2255.2 The Government was of the view that federal habeas corpus

jurisdiction, 28 U.S.C. § 2241, also would not lie because Robinson’s claim “that he no

longer wishes to pay [restitution]” is not a challenge to the execution of his sentence.

(Response, at 2.) In an order entered on December 2, 2008, the District Court denied the

motion to waive restitution without explanation, except that the court referred to the

Government’s response.

       Robinson appeals. The Government has filed a motion for summary affirmance

pursuant to Third Cir. LAR 27.4 and I.O.P. 10.6, to which Robinson has not responded.

       We will grant the Government’s motion and summarily affirm under Third Circuit

LAR 27.4 and I.O.P. 10.6, because it clearly appears that no substantial question is

presented by this appeal. We have jurisdiction under 28 U.S.C. § 1291. Although, as the

Government noted, the exact nature of Robinson’s challenge is unclear, we are satisfied

that he has not stated a basis for jurisdiction in the sentencing court.

       For the foregoing reasons, we will grant the Government’s motion and summarily

affirm the order of the District Court denying appellant’s motion to waive restitution.




   2
     We note further that Robinson did not make an improper delegation argument. See
United States v. Coates, 

, 684-85 (3d Cir. 1999) (ordering schedule of
restitution payments is judicial function that cannot be delegated in whole or in part).

                                               3