United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
RELIEF FROM JUDGMENT 
GERSHWIN A. DRAIN United States District Judge.
Frank Howard pleaded guilty to one count of Social Security
Representative Payee Fraud under 42 U.S.C. § 408(a)(5),
on January 14, 2016. See United States v. Howard,
15-cr-20731, ECF No. 11, p. 1 (Pg. ID 27). As part of his
sentence, the Court ordered Howard to pay restitution of $79,
364.00 to the Social Security Administration
(“SSA”). Id. at ECF No. 17, p. 6 (Pg. ID
December 20, 2017, Howard moved for relief from the Judgment,
and on January 2, 2018, the Government responded to his
motion. See Dkt. Nos. 13, 14. The Defendant filed on
January 30, 2018 a reply in support of his motion.
See Dkt. No. 15.
before the Court is the Defendant's Motion for Relief
from Judgment . The motion is fully briefed, and a
hearing on the motion was held on Monday, March 12, 2018 at
2:00 P.M. For the reasons detailed below, the Court will DENY
the Defendant's Motion for Relief from Judgment .
his January 14, 2016 sentencing, Howard has encountered
financial difficulties. First, starting April 2017, the SSA
has applied all of his social security benefits toward the
Court-ordered restitution. Dkt. No. 13, p. 2 (Pg. ID 61);
see also Dkt. Nos. 13-3, 13-4. And pursuant to
divorce proceedings, as of January 2018, his ex-wife has
received half of his monthly FCA U.S. LLC pension. Dkt. No.
13, p. 2 (Pg. ID 61). Therefore, according to the Defendant,
his only income will be half of his FCA U.S. LLC pension and
all of his veteran's pension, allegedly placing him below
the poverty level. Id. at pp. 2-3 (Pg. ID 61-62).
sentencing the Defendant, the Court did not specify a payment
plan for restitution. See United States v. Howard,
15-cr-20731, ECF No. 17, p. 6 (Pg. ID 77). Accordingly,
payment was due in full immediately. See 18 U.S.C.
§ 3572(d). Howard asks the Court to amend the payment
schedule, claiming there has been a material change in his
economic circumstances that affects his ability to pay
restitution. See 18 U.S.C. § 3664(k). The
Defendant's financial situation is unfortunate. But, the
law does not entitle Howard to relief. Therefore, the Court
will deny his motion.
is not entitled to relief for two reasons. First,
administrative relief from an order of restitution is only
proper under 18 U.S.C. § 3664(o), and this provision is
inapplicable here. Second, the Court lacks jurisdiction to
the extent Howard contests the SSA's decision to withhold
all of his social security benefits.
Statutory Relief from Judgment
U.S.C. § 3664 governs procedures for the issuance and
enforcement of restitution orders. And 18 U.S.C. §
3664(o) details the limited instances where a court can
amend, correct, or adjust a restitution order. Howard
vigorously, and unsuccessfully, argues 18 U.S.C. §
3664(o)(1)(D) affords him relief.
provision authorizes an adjustment to a restitution payment
schedule pursuant to 18 U.S.C. § 3664(k). 18 U.S.C.
§ 3664(k) allows courts to alter a payment schedule if
there is a material change in a defendant's economic
circumstances. Howard contends the principal change in his
circumstances is that, since April 2017, the SSA has withheld
his entire monthly social security benefit payment and
contributed this amount toward satisfaction of the
Court-ordered restitution. Additionally, as of January 2018,
his ex-wife has received half of his FCA U.S. LLC pension.
Howard maintains these changes will sink his income below the
poverty line, and exacerbate his significant outstanding
liabilities, including medical bills. Dkt. No. 13-1, p. 2
(Pg. ID 65).
cannot secure relief through 18 U.S.C. § 3664(k),
however. The Court did not set a payment schedule for
restitution. Howard, then, must pay restitution in full and
immediately. See 18 U.S.C. § 3572(d). In this
circumstance, courts in this Circuit have concluded that no
schedule exists for the Court to amend. See United States
v. Strickland, 13-cr-20155, 2017 U.S. Dist. LEXIS 36024,
at *2 (E.D. Mich. Mar. 14, 2017) (finding that as “the
[c]ourt did not implement a payment schedule in its
restitution order[, ]” “there is no payment
schedule for the Court to amend”); see also United
States v. Nelson, No. 03-80712, 2013 U.S. Dist. LEXIS
94515, at *4 (E.D. Mich. July 8, 2013) (concluding “the
court cannot modify a nonexistent ...