United States v. Wykoff, No. 16-1307 (7th Cir. 2016)

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Wykoff pleaded guilty to wire-fraud charges after soliciting bribes and kickbacks while a Bloomington, Indiana, official. The district judge sentenced him to 55 months in prison and to pay restitution of $446,335 to Bloomington and a $1,100 assessment, with payments “to begin immediately.” The judge added a “special instruction”: “Any unpaid restitution balance during the term of supervision shall be paid at a rate of not less than 10% of the defendant’s gross monthly income.” The government obtained a garnishment under 28 U.S.C. 3205(b)(1), issued to the Indiana pension system because it had an account in Wykoff’s name worth $47,937. Wykoff requested a hearing to determine whether any of the money was exempt. He argued that he had already forfeited two of his homes and the government had seized money from his prison account and that the balance should be deferred to his release because the “special instruction” limited his restitution payments to 10 percent of his monthly income. The Seventh Circuit rejected the argument. The instruction says that 10 percent is the minimum amount he must pay. The federal criminal code requires that restitution be paid immediately unless the district court provides otherwise, 18 U.S.C. 3572(d)(1), which it did not.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 1307 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JUSTIN WYKOFF, Defendant Appellant. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 14 CR 105 — Tanya Walton Pratt, Judge. ____________________ SUBMITTED SEPTEMBER 7, 2016 — DECIDED OCTOBER 6, 2016 ____________________ Before WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. Justin Wykoff pleaded guilty to wire fraud charges growing out of his having solicited bribes and kickbacks while a Bloomington, Indiana, official. The district judge sentenced him to 55 months in prison and to pay restitution of $446,335 to Bloomington and a $1,100 assessment, with both payments “to begin immediately.” 2 No. 16 1307 The judge added what she called a “special instruction”: “Any unpaid restitution balance during the term of supervi sion [i.e., the period following release from prison when the defendant would be subject to the conditions of supervised release imposed by the judge at sentencing] shall be paid at a rate of not less than 10% of the defendant’s gross monthly income.” Soon after the entry of judgment, the government ap plied to the judge for a writ of garnishment pursuant to 28 U.S.C. § 3205(b)(1). The judge issued the writ to the Indiana pension system because it had an account in Wykoff’s name (for remember that he’d been an Indiana official) worth $47,937. Wykoff requested a hearing under 28 U.S.C. § 3202(d) to determine whether any of the money in the ac count was exempt. In addition he opposed garnishment on the ground that he had already forfeited two of his homes and the government had seized money from his prison ac count, and although these assets were not enough to pay all the restitution he owed he argued that the balance should be deferred to his release. He based the argument on the judge’s “special instruction,” which he interpreted as limit ing his restitution payments to 10 percent of his monthly in come. But the instruction doesn’t say that; it says that 10 per cent is the minimum amount he must pay to complete restitu tion. United States v. Fariduddin, 469 F.3d 1111, 1113 (7th Cir. 2006). In fact he has no legal leg to stand on. The federal crimi nal code requires that restitution be paid immediately unless the district court provides otherwise, 18 U.S.C. § 3572(d)(1), which it did not. In United States v. Sawyer, 521 F.3d 792, 795 (7th Cir. 2008), we pointed out that at the start of incarcera No. 16 1307 3 tion “any existing assets should be seized promptly. If the restitution debt exceeds a felon’s wealth, then the Mandato ry Victim Restitution Act of 1996, 18 U.S.C. §§ 3663A, 3664, demands that this wealth be handed over immediately.” This is an important rule—for who knows what might hap pen to Wykoff’s assets during his years of imprisonment. He or members of his family or for that matter the Indiana state pension fund might decide that there are better things to do with those not inconsiderable assets than give them to Bloomington. In short, his claim is groundless, and so the district court’s judgment is AFFIRMED.

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