ELIZABETH A. KOVACHEVICH, District Judge.
This cause is before the Court on:
Defendant Howronda Overstreet requests review of the amount of Defendant's restitution payment while in custody. Defendant Overstreet is now scheduled to pay $193.00 per month. Defendant Overstreet requests that the Court amend Defendant's Judgment and Commitment to suspend restitution payments until Defendant Overstreet is released, or have it set at a fixed amount of $25.00 each quarter. Defendant Howronda Overstreet argues that the BOP includes funds that are sent in to Defendant's commissary account by family and friends to determine how much the BOP will deduct from Defendant's account to repay restitution while incarcerated, and Defendant Overstreet is punished for not being able to make FRP payments.
The Government responds that Defendant Overstreet has not demonstrated that there has been a material change in Defendant Overstreet's circumstances from those contemplated by the Court at the time of Defendant's sentencing. The Government attached a print-out of Defendant Overstreet's account (Dkts. 46-2, 46-3), showing deposits, sales transactions, and FRP payments.
Pursuant to a written Plea Agreement (Dkt. 4), Defendant Overstreet pled guilty to Counts One and Two of the Information, violations of 18 U.S.C. Sec. 641, Theft of Government Funds. Defendant Overstreet waived Indictment, and was sentenced on February 3, 2017. (Dkts, 29, 32, 34). Defendant Overstreet was sentenced to 57 months imprisonment (concurrent), 36 months supervised release (concurrent), fine waived, restitution of $679,302.00, and a forfeiture money judgment of $14,390.00. Defendant Overstreet was represented by retained counsel throughout this case.
At sentencing, Defendant Overstreet reported she had no significant assets. (Dkt. 25, Pars. 98-99). At sentencing, Defendant Overstreet did not object to the amount of restitution, or the manner in which the restitution was to be paid. The Court notes that Defendant Overstreet's Plea Agreement includes an appeal waiver (Dkt. 4, pp. 13-14).
Defendant Overstreet's Final Judgment states:
(Dkt. 32, p. 5).
The Bureau of Prisons operates an Inmate Financial Responsibility Program in which all inmates with obligations, including special assessments, restitution, fines and court costs, and other federal financial obligations, are encouraged to develop a financial repayment plan with institution staff.
18 U.S.C. Sec. 3664(k) provides:
"A defendant who disputes his ability to pay restitution bears the burden of demonstrating his financial resources by a preponderance of the evidence."
The Court further notes that a restitution payment schedule should only be altered if there is a bona fide change in Defendant Overstreet's financial condition that affects her ability to pay restitution.
The Court notes that Defendant Overstreet did not object to the calculation of restitution at sentencing or on direct appeal, nor has Defendant Overstreet demonstrated the existence of exceptional circumstances that would excuse Defendant Overstreet's failure. Defendant Overstreet has waived her right to object to the initial restitution calculation.
Defendant Overstreet now challenges only the manner in which the BOP is executing collection of Defendant's restitution obligation. Defendant Overstreet also complains that there are adverse consequences to non-participation in the Inmate Financial Responsibility Program.
After consideration, the Court finds that Defendant Overstreet has not established by a preponderance of the evidence that there has been a material change in Defendant's economic circumstances from those contemplated by the Court at the time of sentencing. The Court therefore denies Defendant Overstreet's request to amend the Final Judgment to suspend restitution payments until Defendant Overstreet is released. Accordingly, it is