On appeal from a judgment of the United States District Court for the District of Connecticut (Covello, J.), defendant challenges the court's authority to amend his restitution schedule while he is still incarcerated. Although the Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663 et seq., does not expressly confer such authority, we conclude that it inheres in the authority that statute confers on district courts to permit an award of restitution to be paid in periodic installments, see id. § 3663(f)(1), rather than immediately, as otherwise provided by law, see id. § 3663(f)(3). Nevertheless, insofar as the final challenged order provides for increases in defendant's restitution schedule in accordance with the Inmate Financial Responsibility Program, we vacate that order as an impermissible delegation of judicial power to the Bureau of Prisons.
AFFIRMED in part, VACATED in part, and REMANDED.
The opinion of the court was delivered by: Reena Raggi, Circuit Judge
Before: MINER, KATZMANN, and RAGGI, Circuit Judges.
Defendant Basil Kyles was convicted after a jury trial in the United States District Court for the District of Connecticut (Alfred V. Covello, Judge) of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). On September 9, 1993, the court sentenced Kyles to 262 months' imprisonment, five years' supervised release, and a $50 special assessment. As a special condition of his supervised release, Kyles was directed to pay $4,133 in restitution on a schedule to be determined by the United States Probation Office.
In fact, the Probation Office never set any restitution schedule for Kyles. Instead, over the next thirteen years, the district court itself entered various orders specifying the schedule on which Kyles was to pay the specified restitution amount while incarcerated, requiring first that he pay $2 per month, then that he pay $25 per month, and finally that he pay such amount as was determined under the guidelines of the Inmate Financial Responsibility Program ("IFRP"). Kyles did not timely appeal the first amended order, precluding him from doing so now. See Baker v. Dorfman, 239 F.3d 415, 426 n.6 (2d Cir. 2000). He nevertheless challenges the last two amendments as unauthorized modifications of his sentence. Although Kyles acknowledges that the Victim and Witness Protection Act of 1982 ("VWPA") permits a sentencing court to order a defendant to make restitution in installments over a specified time, see 18 U.S.C. § 3663(f)(1) (1993), he maintains that the statute does not authorize*fn1 modifications to a restitution schedule while a defendant is still incarcerated. For the reasons discussed in this opinion, we disagree. Whatever limits may apply to a court's authority to alter the amount of restitution awarded in a judgment of conviction, these limits do not extend to the court's authority to modify the schedule for paying such amount. The latter authority derives from the statutory conferral of discretion on district courts to excuse a defendant from the presumption in favor of immediate payment of a restitution award. See id. § 3663(f)(1), (3). Implicit in such effectively equitable power is the authority to modify an initial payment schedule as warranted by a defendant's financial circumstances, mindful of the overall statutory goal of compensating crime victims.
While we thus reject Kyles's authority challenge on the merits, we are compelled by circuit precedent to conclude that the last challenged order, directing that Kyles's payment schedule be increased as warranted by IFRP guidelines, constitutes an impermissible delegation of judicial power to the Bureau of Prisons. See United States v. Mortimer, 94 F.3d 89, 90-91 (2d Cir. 1996). Accordingly, we vacate that order and remand for the district court itself to set an appropriate restitution schedule.
A. The Order of Restitution in the Original Judgment of Conviction
In a judgment of conviction entered on September 15, 1993, Kyles was sentenced on one count of armed bank robbery to 262 months' incarceration, five years' supervised release, and a $50 special assessment. In a section entitled "Special Conditions of Supervised Release," the judgment stated that "Defendant shall make restitution to the Shawmut Bank in the amount of $4,133 on a schedule to be determined by the United States Probation Office." United States v. Kyles, No. 92 Cr. 91, Judgment (Sept. 15, 1993). The judgment was affirmed by this court in United States v. Kyles, 40 F.3d 519, 527 (2d Cir. 1994).*fn2
B. Amendments to the Restitution Schedule
1. The October 19, 1998 Order Amending Judgment
On October 19, 1998, the district court ordered that Kyles's original judgment be amended to require him to "pay restitution of $2 per month, while incarcerated." United States v. Kyles, No. 92 Cr. 91, Order Amending Judgment (Oct. 19, 1998). The court*fn3 specifically reserved the authority to alter this amount as circumstances warranted. See id. ("The court may adjust the amount of the monthly repayment according to the defendant's ability to pay."). Kyles did not appeal this order. Thus, any challenges ...