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Criminal Practice – Habeas Lies for Restitution Through BOP

Fontanez v. O’Brien (Lawyers Weekly No. 001-184-15, 8 pp.) (Harris, J.) No. 14-7607, Dec. 2, 2015; USDC at Wheeling, W.Va. (Stamp, J.) 4th Cir.

Holding: A federal inmate may file a habeas petition under 28 U.S.C. § 2241 seeking release from the obligation to make restitution payments through the Bureau of Prisons Inmate Financial Responsibility Program; the 4th Circuit says the district court erred in dismissing the claim as not cognizable in habeas.

Sentenced to 420 months in a federal prison for a series of armed robberies, defendant also was ordered to pay $27,972.61 in restitution through the Program. In his request to be released from the Program, petitioner argued the BOP’s requirement that he make IFRP payments violated the Mandatory Victims Restitution Act of 1996. The MVRA obligates a district court to specify in a restitution order the manner in which, and the schedule according to which, the restitution is to be paid.

Petitioner contended the sentencing court had failed to set a schedule for his restitution payments and had instead unlawfully delegated its power to set that schedule to the BOP. He contended the BOP lacked authority to require him to make restitution payments through the IFRP or to punish him for refusing to pay. Petitioner claimed § 2241 was the proper procedural vehicle for his claim because he was challenging the “execution,” and not the validity, of his sentence.

The district court denied the petition because it understood the claim to be a challenge to the validity of the sentencing order, and not to the execution of the sentence. The court found that petitioner’s claim was not directly cognizable under § 2241. But as petitioner’s arguments have been clarified on appeal, it is now apparent that he is indeed challenging the execution of his sentence by the BOP.

While a premise of petitioner’s argument is that the sentencing order is invalid, he does not seek to have that order set aside. Instead, the claim on which he seeks relief is that the BOP’s execution of the restitution portion of his sentence is unlawful. It is well established that attacks on the execution of a sentence are properly raised in a § 2241 petition. Moreover, other circuit courts have expressly held that an inmate’s challenge to the BOP’s administration of the IFRP relates to the “execution” of a sentence and is properly brought under § 2241. We have reached the same conclusion in unpublished opinions.

We now hold that an inmate’s challenge to the BOP’s administration of the IFRP is a challenge to the “execution” of a sentence that is cognizable under § 2241. We reverse the district court order.

Reversed and remanded.

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