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United States of America v. Tracey M. Mcinchak

June 6, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TRACEY M. MCINCHAK, DEFENDANT.



The opinion of the court was delivered by: Robert H. Cleland United States District Judge

ORDER DENYING DEFENDANT'S REQUEST FOR CLARIFICATION OF THE SENTENCE

On February 16, 2012, Defendant Tracey M. McInchak pleaded guilty to one count of embezzlement in violation of 18 U.S.C. § 656, and one count of filing a fraudulent tax return in violation of 18 U.S.C. § 7206(1). Defendant was sentenced to a term of 15 months as to count 1 and 2, to be served concurrently; and 3 years of supervised released as to count 1 and 1 year as to count 2, to be served concurrently for counts involving violations of 18 U.S.C. § 656 and 18 U.S.C. § 7206(1). (J. at 3-4.) Furthermore, Defendant was ordered to pay restitution in the amount of $503,320.75 to be paid to the Clerk of the Court for disbursement to Comerica Bank in the amount of $440,614.47 and to the United States Internal Revenue Service in the amount of $62,706.28. (Id. at 5.)

On March 26, 2012, pursuant to 18 U.S.C. § 3664(f)(2) and § 3664(f)(3)(A) a motion was filed by or on behalf of Defendant. (Def.'s Mot. Clarification 1.) Specifically, Defendant requests this court to reconsider and clarify the intervals by which restitution is to be paid. (Id.) For the following reasons, the court will deny the motion.

Defendant's motion cites § 3664(f)(3)(B), which states that a court may issue a restitution order directing the Defendant to make nominal payments if, from the facts of the case, the court finds that Defendant's economic situation prevents her from paying the full amount of the restitution order "under any reasonable schedule of payments" in the foreseeable future. (Def.'s Mot. Clarification 2.) Defendant points to the Presentence Investigation Report ("PSR") to assert that she does not have the ability to pay the fine imposed by the court and that she would only be able to make nominal monthly payments towards the balance of the restitution. (Id.)

As an initial matter, for a motion to alter or amend a judgment to be timely, it must be brought no later than 28 days after entry of judgment. Fed. R. Civ. P. 59(e). The entry of judgment in this case was made on February 27, 2012. (J. 1.) Defendant filed the motion for clarification of sentence ...


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