The U.S. Court of Appeals for the 9th Circuit has ruled that "a sentencing court must review the issue of defendant restitution, not simply order "immediate" repayment and delegate the details of the actual payment schedule to the Bureau of Prisons (BOP) or the Probation Department. In doing so, the court reversed the district court ruling that the Inmate Financial Responsibility Program (IFRP) payment of prisoner Jack Richard Ward could be set by the BOP.

Ward as part of his sentence had been ordered to pay a $1000 Crime Victim Fund Assessment and $27,885 in restitution to his crime victims. War after coming to prison took a job with Unicor, the prison employment program, and portions of his pay were deducted for payment of his IFRP. Ward filed motions with the sentencing judges, which were construed as Section 2255 petitions. The court then moved to vacate its own restitution order, but after the government objected ruled that it lacked jurisdiction to issue its prior order and let the former restitution delegation order stand.

Ward then instituted a habeas corpus proceeding, which survived the government's attempts to have it dismiss for failure to exhaust administrative remedies, or grounds that attempts to do so would be futile. See: Sours v. Chavez, No. 2:08-cv-01903-SRB, Dkt. No. 22, slip op. at *2-3 (D. Airz. June 17, 2009).

The court then considered the Mandatory Victims Restitution Act, MVRA) which directs a sentencing court to "specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid."

18 U.S.C. Section 3664(f)(2), finding it non-delegable. See: U.S. v. Gunning (Gunning I), 339 F.3d 948, 949 (9th Cir. 2003). "The district court simply does not have the authority to delegate its own scheduling duties-not to the probation office, not to the BOP, not to anyone else," See: Gunning II, 401 F.3d at 1150.

The court noted that it had previously clarified the demarcation between impermissibly delegating authority to the BOP and the BOP's independent power to administer the IFRP. See: U.S. v. Lemoine, 546 F.3d 1042 (9th Cir. 2008). That case held that the BOP collection of the court-ordered IFRP, although "voluntary," could be encouraged by various sanctions and withholding of privileges to prisoners for non-payment.

The court rejected in this case the government argument that a district court order merely ordering "immediate payment," as set forth in U.S. v. Martin, 278 F.3d 988, 1006 (9th Cir. 2002), but the court distinguished that case because the issue of whether "Immediate" payment of restitution delegated scheduling authority to the BOP or probation, but rather concluded that "the court had before it information regarding Defendant's financial resources that it presumably considered and found insufficient wto warrant periodic payments." It also observed that similar factual circumstances in cases from the sister circuits had concluded that "Orders directing 'immediate' payment under such circumstances are indistinguishable in principle fro outright delegations of authority to the Bureau of Prisons. See: U.S. v. Corley, 500 F.3d 210 (3rd Cir. 2007).

Therefore, the court recognized in this case„ "For a restitution order to be lawful, ... Section 3664 requires that the district court set a schedule in consider­ation of the defendant's financial resources." The court concluded, that, "without a proper order the BOP does not have the authority to require a schedule of restitution payments collected while Petitioner is participating in the IFRP," citing Ybarra v. Smith, No. CV-09-1447-PHX-DGC (JRI) 2010 U.S. Dist. LEXIS 135696, at *5-6 (D. Ariz. Dec. 20, 2010). The court reversed and remanded for further proceedings in the district court consistent with its decision. See: Ward v. Chavez, 09-17016, U.S. Crt of Appeals for the 9th Cir., (2012).

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