United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING MOTION FOR MODIFICATION
E. Hudson United States District Judge
MATTER is before the Court on Defendant Brandon Lee
Caudle's Motion for Modification of Restitution, filed
pro se on December 8, 2016. (ECF No. 30.) The United
States filed a response opposing Defendant's motion on
May 9, 2017. (ECF No. 33.) Defendant replied on May 18, 2017.
(ECF No. 34.) For the reasons that follow, the Court will
deny the Motion.
September 10, 2013, Defendant pleaded guilty in this Court to
one count of mail fraud, in violation of 18 U.S.C. §
1341, and one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1). Those offenses
were partially committed between roughly January and February
2012 while Defendant was imprisoned at Federal Correctional
Complex Petersburg. (ECF No. 8.) On December 17, 2013, this
Court sentenced Defendant to two consecutive twenty-four
month terms of imprisonment, for a total term of forty-eight
months, to be followed by three years of supervised release.
(ECF No. 19.) The Court further ordered Defendant to pay $16,
135.35 in restitution "due and payable immediately"
to the Internal Revenue Service ("IRS").
15, 2016, Defendant pleaded guilty in the United States
District Court for the Northern District of Ohio to three
counts of mail fraud, in violation of 18 U.S.C. § 1341.
A portion of the conduct that constituted those offenses
occurred while Defendant was serving this Court's
sentence at Federal Correctional Institution, Elkton, in
Lisbon, Ohio. See Criminal Information, United
States v. Caudle, No. 4:16-CR-179-SL (N.D. Ohio May 27,
2016). On October 11, 2016, the Ohio court sentenced
Defendant to forty-one months imprisonment, to be served
consecutively with any other state or federal sentence, and
three years of supervised release. The Ohio court further
ordered Defendant to pay $7, 500.78 in restitution, which
includes payment to non-federal victims.
has now moved this Court to modify his restitution payments,
and both sides have filed memoranda supporting their
respective positions. The Court will dispense with oral
argument because the facts and legal contentions are
adequately presented in the materials before it, and oral
argument would not aid in the decisional process. E.D. Va.
Loc. Civ. R. 7(J).
appears to make two arguments. First, he contends that the
restitution ordered in this Court should be subordinate to
the restitution ordered in the Northern District of Ohio.
Next, Defendant appears to argue that the percentage of
income ordered to be paid towards restitution should be
reduced because of financial hardship. Each of these
arguments will be addressed in turn.
argument that this Court's restitution order should be
subordinate to the Ohio court's is based on 18 U.S.C.
3664(i), which states:
If the court finds that more than 1 victim has sustained a
loss requiring restitution by a defendant, the court may
provide for a different payment schedule for each victim
based on the type and amount of each victim's loss and
accounting for the economic circumstances of each victim. In
any case in which the United States is a victim, the court
shall ensure that all other victims receive full restitution
before the United States receives any restitution.
on this provision, Defendant argues that because the Ohio
court ordered him to pay restitution to non-federal victims,
he should be required to pay all of his Ohio restitution
before paying the restitution ordered by this Court, which
involves solely a federal victim, the IRS.
Defendant's reliance on § 3664(i) is unsound. 18
U.S.C. § 3664(i) clearly applies only to victims in the
same "case." Therefore, that provision cannot be
used to prioritize the restitution order from one case over
the restitution order from another case. Because the IRS is
the sole victim in Defendant's offense in this Court,
§ 3664(i) is inapplicable. As such, the Court declines
to subordinate its restitution order.
next argues that the Court should reduce the percentage of
his income ordered to be paid toward restitution because of
his financial hardship. A restitution order is considered a
final judgment. 18 U.S.C. § 3664(o). However,
restitution can be
(A) corrected under Rule 35 of the Federal Rules of Criminal
Procedure and section 3742 of ...