United States of America v. Von Eric Sweatt

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1752
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
VON ERIC S WEATT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:10-cr-00118-TWP-TAB-01 — Tanya Walton Pratt, Chief Judge.
____________________
S UBMITTED O CTOBER 24, 2023* — DECIDED NOVEMBER 8, 2023
____________________
Before HAMILTON , S CUDDER , and L EE, Circuit Judges.
PER C URIAM . Von Eric Sweatt, who is serving a 384-month
sentence in federal prison, asked the district court to modify
the terms of his restitution obligation based on a change in his
* We have agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. FED . R. A PP.
P. 34(a)(2)(C).

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2 No. 23-1752
financial circumstances pursuant to 18 U.S.C. § 3664(k). The
district court denied the motion on the grounds that it lacked
the authority to do so. Because the district court has the au-
thority under §3664(k) to adjust Sweatt’s restitution payment
schedule, we vacate the decision and remand for considera-
tion of the motion on the merits.
In 2010, Sweatt pleaded guilty to five counts of armed
bank robbery under 18 U.S.C. § 2113(d). As part of his sen-
tence, the district court ordered him to pay his victims a total
of $20,038.52 under the Mandatory Victims Restitution Act,
18 U.S.C. §§ 3663A–3664. On the section of the judgment form
titled “Payment Schedule,” the court selected “immediately”
from the list of ways payment was to be made (other options
included payment as lump sum or payments beginning at a
later time). The judgment did not set forth a pre-release pay-
ment plan but imposed one for the balance remaining when
Sweatt begins serving supervised release.
In January 2023, on the government’s motion, the district
court authorized the Bureau of Prisons to turn over $600 from
Sweatt’s prison trust account (which had held roughly $1,100)
to be applied toward his restitution debt. The government re-
lied on 18 U.S.C. § 3664(n), which provides that any substan-
tial financial resources prisoners receive during incarceration
must be applied toward restitution.
Around the same time, Sweatt was transferred to a medi-
cal center within the Bureau for hip replacement surgery; this
prevented him from working for about 18 months. Therefore,
Sweatt declined to participate in the Bureau’s Inmate Finan-
cial Responsibility Program (the “Program”), 28 C.F.R.
§ 545.10–11, through which the Bureau allocates portions of
prisoners’ incomes to their restitution debts. Participation in

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No. 23-1752 3
the Program is not mandatory, but prisoners who opt out lose
various privileges. United States v. Boyd, 608 F.3d 331, 333
(7th Cir. 2010). Sweatt declined to participate in the Program
because he was unable to work and over half his funds for
basic necessities had been directed toward restitution.
Sweatt then filed a motion to modify his judgment to halt
his restitution payments until he recovers from surgery and
resumes working. He relied on 18 U.S.C. § 3664(k), which
provides, in relevant part, that once a court receives notifica-
tion of “any material change in the defendant’s economic cir-
cumstances that might affect the defendant’s ability to pay
restitution,” the court “may, on its own motion, or the motion
of any party … adjust the payment schedule, or require im-
mediate payment in full, as the interests of justice require.” 18
U.S.C. § 3664(k). Sweatt argued that he faced such a change
because he was unable to work for an extended period and
over half of his trust account balance already had been put
toward his restitution. Although Sweatt was not participating
in the Program, the government responded to the motion by
arguing that the district court lacks the authority to review
Bureau decisions regarding Program payment plans.
The district court denied Sweatt’s motion, stating that
Sweatt had not identified a source of authority allowing the
court to modify the restitution order and agreeing with the
government that the court could not modify payment plans
under the Program. Sweatt appeals, and we review the dis-
trict court’s decision for an abuse of discretion. United States
v. Day, 418 F.3d 746, 758–59 (7th Cir. 2005).
Sweatt’s primary argument on appeal is that the govern-
ment took inconsistent positions on the scope of the district
court’s authority. He contends that the government was

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4 No. 23-1752
judicially estopped from disputing the court’s authority to
modify his payment schedule under § 3664(k) when it had
previously argued under § 3664(n) that the district court
could modify his payments based on his finances.
Judicial estoppel has no role here, however. The doctrine
bars a party from prevailing on a position in court and then
taking the opposite position at a different stage or in new pro-
ceedings. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001).
But the government’s positions were not contradictory: First,
it asserted that § 3664(n) allows a district court to order funds
turned over from a prisoner’s trust account, and later, that
district courts cannot review Program payment plans.
Still, the government’s argument was puzzling. When
Sweatt requested a modification under § 3664(k), the govern-
ment assumed that Sweatt was trying to alter his obligations
under a Program agreement with the Bureau. But no such
agreement existed, as Sweatt had made clear in his motion
that he had declined to participate.
Yet the district court accepted the representation that
Sweatt was a Program participant and ruled that it lacked the
authority to modify a Program agreement. As a result, the
court did not reach the merits of Sweatt’s § 3664(k) argument.
Although we have had occasion to address the district court’s
authority to modify a restitution schedule under § 3664(k), we
have not done so in a published decision. We do so now to
provide district courts with more definitive guidance in this
area.
Here, the district court had authority under § 3664(k) to
modify the restitution schedule. The judgment states that res-
titution is payable “immediately,” which means “as quickly

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No. 23-1752 5
as possible.” United States v. Sawyer, 521 F.3d 792, 796 (7th Cir.
2008); see 18 U.S.C. § 3572(d)(2). By seeking relief from this
provision (which allowed the government to seek turnover),
Sweatt did not ask to alter the fact or amount of restitution or
to usurp the Bureau’s exclusive authority to impose a pre-re-
lease payment plan. See Sawyer, 521 F. 3d at 796. He requested
only that the court adjust his “payment terms” based on a
change in his economic circumstances. See United States v.
Goode, 342 F.3d 741, 743 (7th Cir. 2003) (interpreting similar
statutory language to give district courts jurisdiction to mod-
ify fines). In general, district courts lack jurisdiction to modify
a sentence, but they can do so when authorized by statute.
See Sawyer, 521 F.3d at 796; see also United States v. Scott,
414 F.3d 815, 816 (7th Cir. 2005). And as Sweatt pointed out,
§ 3664(k) gives the district court the authority to do what he
asked. Because the district court did not recognize or use the
discretion it had, it abused that discretion. United States v.
McSwain, 25 F.4th 533, 540 (7th Cir. 2022).
To be clear, we take no position on whether the district
court should grant Sweatt the relief he seeks. The defendant’s
ability to pay cannot be a factor in setting the amount of resti-
tution. 18 U.S.C. § 3664(f)(1)(A); see United States v. Brazier,
933 F.3d 796, 804 (7th Cir. 2019). But the defendant’s economic
outlook factors into the repayment schedule and any changes
to it. 18 U.S.C. §§ 3572(f)(2); 3664(k). Therefore, the district
court must determine whether Sweatt satisfies the criteria of
§ 3664(k) and, if so, whether any relief is warranted.
We VACATE the decision and REMAND for the district
court to consider Sweatt’s motion on the merits.

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