Can't Amend Restitution Sentence Without a Reason

Nicole Grant will pay for her $42,152 mistake, even if she'll only pay $125 at a time.

In 2009, Grant was indicted on one count of stealing government property in excess of $1,000 after she failed to notify the government that she was no longer eligible for Supplementary Security Income ("SSI") after she subsequently married.

She pled guilty and was sentenced to probation, brief home confinement, and restitution. Her presentencing report factored in her income, expenses, debts, and tax refunds for the preceding four years, leading the judge to require her to pay $250 per month in restitution payments. That was lowered to $125 in 2010.

In 2010 and 2011, Grant received tax refunds of $2,900 and $3,300 respectively. Her probation officer petitioned the court to require Grant to divert all "tax refunds, lottery winnings, inheritances, judgments, and any anticipated or unexpected financial gains" toward the outstanding restitution amount. After a hearing, the district court adopted the requested special condition. Grant appealed.

Congress set up a "detailed and extensive" framework for the issuance and modification of criminal restitution orders when it passed the Mandatory Victims Restitution Act of 1996. Under that framework, a restitution order can only be modified:

• Within 14 days, when an error "resulted from arithmetical, technical, or other clear error";
• When the defendant substantially assists the government;
• When the sentence is appealed;
• When victims' losses are unascertainable at the sentencing hearing;
• When the defendant defaults; and
• When there is a material change in the defendant's ability to pay.

The only factor arguably applicable in Grant's case was the final factor, material change -- but the Fourth Circuit ruled it was also not applicable. That's because at the time of her original sentencing, the district court considered her past years of tax refunds, which were in line with the present refunds of approximately $3,000 per year. Nothing changed.

Without evidence of a change in circumstances, a modification of her original sentence was an abuse of discretion, the Fourth Circuit ruled. That means Grant only has about 300 months of payments, at $125 each, remaining.

Related Resources:

• United States v. Grant (Fourth Circuit Court of Appeals)
• Restitution Awards Don't Require Juries in Petty Criminal Cases (FindLaw's Ninth Circuit Blog)
• Amy and Vicky, Child Porn Victims: No Joint and Several Restitution (FindLaw's Ninth Circuit Blog)