United States of America v. Wayner D. Black

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2022*
Decided April 5, 2022
Before
WILLIAM J. BAUER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
Nos. 21-2311 & 21-2338
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WAYNER D. BLACK,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 09-cr-108-bbc
Barbara B. Crabb,
Judge.
O R D E R
Wayner Black, a federal prisoner, separately appeals two post-judgment
decisions in his criminal case: a turnover order for $4,043.02 in funds from his inmate
trust account to satisfy a restitution award, (No. 21-2311), and the denial of his motion
for compassionate release (No. 21-2338). The appeals are unrelated, and were not
* We have agreed to decide this 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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Nos. 21-2311 & 21-2338 Page 2
initially consolidated, but the line between them blurred during briefing, and so we
have consolidated them for disposition. In each appeal, we affirm.
In 2009, Black and three accomplices held tellers at a Wisconsin bank at
gunpoint, stealing $15,208.97. Black pleaded guilty to armed bank robbery under
18 U.S.C. § 2113(a), (d), and was sentenced as a career offender to 262 months’
imprisonment. In his plea agreement, Black accepted joint-and-several liability for
restitution with his co-defendants for “the full amount of restitution … due and payable
immediately,” under the Mandatory Victims Restitution Act, 18 U.S.C. § 3664. At the
sentencing hearing, Black was again told, “your restitution obligation is joint and
several” with his co-defendants, and the court entered a restitution order for $15,208.97,
“due in full immediately.” Black surrendered $2,400, but because he lacked means to
pay in full, the court ordered his participation in the Inmate Financial Responsibility
Program, an installment plan administered by the Bureau of Prisons, under which
payments were automatically deducted from his earnings in prison. See United States v.
Alverez, 21 F.4th 499, 504 (7th Cir. 2021) (court must set payment schedule for indigent
defendant); United States v. Hernandez, 952 F.3d 856, 861 (7th Cir. 2020) (court may
delegate administration of payment schedule to IFRP).
In May 2021, Black signed an agreement with the Bureau of Prisons increasing
his payments under the IFRP to half of his monthly prison earnings, to be withdrawn
from his inmate trust account. That document also noted that the restitution was
“payable immediate[ly].” The next month, the government learned that Black had over
$4,000 in his inmate trust account, when he and his co-defendants still owed $9,860.94 in
restitution. The government moved to seize Black’s funds as “substantial resources”
that must be applied toward restitution. See 18 U.S.C. § 3664(n). The district court
entered a turnover order, rejecting Black’s argument that his May 2021 IFRP agreement
set a maximum monthly payment and restricted the source of restitution funds to his
earnings. Black raised the same arguments in a motion to reconsider the turnover order,
which the court denied, and Black appealed.
At the same time, Black was seeking early release from prison for compassionate
reasons under 18 U.S.C. § 3582(c)(1)(A). The district court denied Black’s first motion for
failure to exhaust administrative remedies, and he refiled in June 2021. As grounds for
relief, he cited chronic health conditions, the COVID-19 pandemic, and the alleged
unlawfulness of his career-offender enhancement. The district court ruled that Black did
not qualify for release under § 3582(c)(1)(A)(i) because vaccines were available at his
facility, and he remained a danger to the community. Black appealed.

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Nos. 21-2311 & 21-2338 Page 3
Appeal No. 21-2311
We first consider Black’s appeal of the turnover order, No. 21-2311, applying
de novo review. See United States v. Sayyed, 862 F.3d 615, 617 (7th Cir. 2017). He argues
that the order called for payment beyond the maximum set by his installment plan and
seized exempt funds that were for his personal expenses.
The first argument—that his restitution repayment is capped at half of his
monthly prison earnings—lacks merit. His IFRP agreement did not purport to amend
the criminal judgment, which includes the restitution order, nor could it: the Bureau of
Prisons may administer restitution, not modify the judgment. See 18. U.S.C. § 3664(o);
Hernandez, 952 F.3d at 861. Further, Black’s agreement reiterates that full restitution is
due immediately and that half of his earnings “will be withdrawn from [his] account”
towards the debt until he revokes authorization (an act that carries other consequences).
Thus, on its face, the payment plan is not a cap on collections and does not exclude his
trust account. (If Black means to contest the prison’s interpretation of his plan,
moreover, the proper venue is the inmate grievance process. Hernandez, 952 F.3d at 861.)
Black’s second argument, that the $4,043.02 in his account was from non-income
deposits and not a valid source of restitution funds, also fails. Black explains that his
trust account contained funds that friends and family contributed for his living
expenses and contends that this money is therefore not an “inheritance, settlement, or
other judgment” that must go toward restitution under 18 U.S.C. § 3664(n). But the list
in § 3664(n) is non-exhaustive, and we have held that the provision permits seizure of
funds from any source—no matter how acquired or for what purpose—to satisfy
restitution. See e.g., United States v. Wykoff, 839 F.3d 581, 582 (7th Cir. 2016) (upholding
turnover of prison account, percentage of earnings, and pension fund). The court
therefore properly granted the order in the interest of collecting restitution “as quickly
as possible.” See United States v. Sawyer, 521 F.3d 792, 796 (7th Cir. 2008).
Finally, Black argues that the seizure of the full balance in his account, to be applied
toward the then $9,860.94 in outstanding debt, impermissibly left him destitute.
See United States v. Dawson, 250 F.3d 1048, 1050 (7th Cir. 2001). But the statute directs full
restitution “as determined by the court and without consideration of the economic
circumstances of the defendant.” § 3664(f)(1)(A); see United States v. Brazier, 933 F.3d 796,
804 (7th Cir. 2019). And we have specifically held that there is no exception to restitution

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Nos. 21-2311 & 21-2338 Page 4
for personal expenses. See United States v. Gomez, 24 F.3d 924, 927 (7th Cir. 1994) (citing
United States v. House, 808 F.2d 508 (7th Cir.1986)).
Appeal No. 21-2338
We now turn to Black’s second appeal, No. 21-2338, in which he contends that
the district court erroneously denied his amended motion for compassionate release in
June 2021. 18 U.S.C. § 3582(c)(1)(A). First, he argues that he qualified for relief based on
hypertension, obesity, high cholesterol, mental health, a slipped spinal disc, and the
COVID-19 pandemic. Black appended multiple exhibits to his motion, but he provided
no verification of any health conditions, nor information about whether he had access to
a COVID-19 vaccine and was able to receive it. The availability of vaccination within the
Bureau of Prisons means that the health risk of the pandemic is not an “extraordinary
and compelling” reason for release. United States v. Broadfield, 5 F.4th 801, 803 (7th Cir.
2021). As the court noted, Black did not represent that he lacked access to or would not
benefit from the vaccine, nor did he substantiate his assertion that his health was poor,
or argue that he lacked medical treatment in prison. Because the court gave at least “one
reason adequate to support the judgment,” there was no error in concluding that he did
not establish cause for his release. United States v. Ugbah, 4 F.4th 595, 598 (7th Cir. 2021).
Second, Black argues that the district court wrongly constrained its discretion by
asking whether he posed a danger to the community under U.S.S.G. § 1B1.13(2) and
18 U.S.C. § 3142(g), rather than weighing the sentencing factors, 18 U.S.C. § 3553(a).
See United States v. Kurzynowski, 17 F.4th 756, 759 (7th Cir. 2021). But the court properly
denied his motion based on the absence of extraordinary and compelling reasons for relief
(primarily the vaccine). Its decision thus rested on § 3582(c)(1)(A)(i), and implicitly
recognized it was not constrained by § 1B1.13(2) or 18 U.S.C. § 3142(g). Moreover,
protecting the public is a relevant consideration under § 3553(a)(2)(C), so any error in its
alternative explanation was harmless. See Kurzynowski, 17 F.4th at 760.
Finally, Black argues that the district court erred by “refusing to revisit” his career-
offender status, but a motion for compassionate release does not entitle him either to
collaterally attack his original sentence, or to a full resentencing. See United States v. Hible,
13 F.4th 647, 650 (7th Cir. 2021). Regardless, we rejected the same career-offender
argument in his prior appeal. See United States v. Black, 636 F.3d 893, 897–99 (7th Cir. 2011).
AFFIRMED

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