Ward v. Chavez

First, when exhaustion is futile, the exhaustion requirement should be waived. Second, under the MVRA, where a defendant is unable to pay restitution immediately, a court may not order immediate repayment because such an order impermissibly delegates the setting a repayment schedule to the Bureau of Prisons or Probation.

Jack Richard Ward, petitioner, was ordered by the court to pay $1,000 Crime Victim Fund Assessment and $27,885 in restitution to the crime victims, and the “Schedule of Payments” stated that they were due “immediately.” Unicor voluntarily employed Ward. Ward filed motions that were construed by the California district court as motion to vacate, set aside or correct sentence. The court concluded that the immediate repayment was impermissibly delegated to the Bureau of Prison (BOP) and ordered BOP to stop collecting. Government moved for reconsideration and the court dismissed because of lack of jurisdiction. First, the court considered the exhaustion requirement and the Court identified that the district court incorrectly dismissed the case because it did not wave the exhaustion requirement. The exhaustion requirement should have been waived because of the existence of BOP policy, since the exhaustion would be futile. Second, the Court addressed the merits of the petition. An earlier case foreclosed the argument of being “forced” to participate in the Inmate Financial Responsibility Program (IFRP). The question raised was “whether by ordering immediate restitution, the district court failed to set a payment schedule and delegated it’s duty to the BOP”. The district court’s responsibility to set payment schedule cannot be delegated. The Court deemed the order not valid unless a “proper” schedule is set, which led to the question of what entails a proper restitution order. The Court used the conclusion of sister circuits establishing that where defendant has no resources for immediate payment, the court may not order immediate payment because it would delegate the schedule of payments to the BOP, under the Mandatory Victim Restitution Act of 1996 (MVRA). The district court must set a schedule of payments considering the defendant’s financial resources so that the restitution order is lawful. The order by the sentencing court was not valid because it delegated the responsibility of scheduling payments to the BOP impermissibly. REVERSED and REMANDED