Ward

Opinion by Judge JED S. RAKOFF; Dissent by Judge WALLACE.

OPINION

The issue in this case is whether, under the Mandatory Victims Restitution Act of 1996 (“MVRA”), a district court impermissibly delegates its obligation to set a resti *1044 tution payment schedule when it orders “immediate” payment with the expectation that the Bureau of Prisons (“BOP”) will work out a payment schedule with the prisoner pursuant to the Inmate Financial Responsibility Program (“IFRP”). We hold that where the sentencing court has failed to consider whether the defendant has the financial resources to pay restitution immediately, ordering immediate payment impermissibly delegates to the BOP the court’s obligation to set a payment schedule.

BACKGROUND

On December 9, 2002, petitioner Jack Richard Ward was sentenced in the Eastern District of California to 300 months’ imprisonment and 3 years’ supervised release after being convicted of one count of attempted Armed Bank Robbery and nine counts of Armed Bank Robbery. In addition to his prison term, the sentencing court ordered Ward to pay a $1,000 Crime Victim Fund Assessment and $27,885 in restitution to the crime victims. The “Schedule of Payments”…

dissenting:

The majority holds that a district court impermissibly delegates its authority to set a payment schedule under the Mandatory Victims Restitution Act (MVRA) if it orders immediate payment without considering the defendant’s financial condition. In so holding, the majority has volunteered to address an issue which is not before us. Ward waived that issue by failing to raise it in a direct appeal from his sentence. Furthermore, he did not argue either to the district court or to us that the sentencing court failed to consider his financial condition.

Despite Ward’s double waiver, and without an evidentiary record, the majority finds, as a matter of fact, that the judge who sentenced Ward in the Eastern District of California failed to consider the factors relevant to Ward’s ability to pay restitution. I disagree with the majority’s factual finding, which is improper on review of a denial of a petition for habeas corpus filed in the District of Arizona. Furthermore, even assuming that the sentencing court did fail to consider those factors, I disagree with the majority’s erroneous legal conclusion that such an error somehow delegated the sentencing court’s authority to…

Douglas C. Erickson (argued), Maynard Cronin Erickson Curran & Reiter, P.L.C., Phoenix, AZ, for the petitioner-appellant.

Karla Hotis Delord (argued), Dennis K. Burke, and Randall M. Howe, United States Attorney's Office for the District of Arizona, Phoenix, AZ, for the respondent-appellee.

Before: J. CLIFFORD WALLACE and MILAN D. SMITH, JR., Circuit Judges, and JED S. RAKOFF, Senior District Judge. [*]

Opinion by Judge JED S. RAKOFF, Dissent by Judge WALLACE.

RAKOFF, Senior District Judge:

The issue in this case is whether, under the Mandatory Victims Restitution Act of 1996 ("MVRA"), a district court impermissibly delegates its obligation to set a restitution payment schedule when it orders "immediate" payment with the expectation that the Bureau of Prisons ("BOP") will work out a payment schedule with the prisoner pursuant to the Inmate Financial Responsibility Program ("IFRP"). We hold that where the sentencing court has failed to consider whether the defendant has the financial resources to pay restitution immediately, ordering immediate payment impermissibly delegates to the BOP the court's obligation to set a payment schedule.

On December 9, 2002, petitioner Jack…