United States of America v. Charles A. Hewitt

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 26, 2023 *
Decided June 21, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 22-2876
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES A. HEWITT,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 1:18-cr-10059
Joe Billy McDade,
Judge.
O R D E R
Charles Hewitt, a federal prisoner, appeals the district court’s refusal to modify
his restitution order to schedule the payment of restitution during his time in prison.
We affirm. The district court correctly ruled that under United States v. Sawyer, 521 F.3d
792, 795–96 (7th Cir. 2008), the Bureau of Prisons, rather than the district court, should
set that schedule.
* 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).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-2876 Page 2
Hewitt was sentenced, after pleading guilty under a plea agreement, for sex
offenses. 18 U.S.C. §§ 2422(b), 2260A. He received 420 months in prison and was
ordered to pay $9,000 in restitution and a $200 assessment. He agreed that “any and all
financial obligations imposed by the Court” were “due and payable immediately upon
entry of the judgment of conviction” and that he would not “dissipate assets or [ ]
request any delay or stay in the payment of any and all financial obligations.” He also
“waive[d] all rights to appeal and/or collaterally attack his conviction and sentence,”
including the restitution order (except for a claim of ineffective assistance of counsel).
According to the original judgment, “[a]s long as any balance remains due and owing
toward the Restitution, [Hewitt] is to pay 40% of his disposable income towards
Restitution.” The next day, Hewitt moved to amend the restitution order to specify that
interest on that debt did not accrue during incarceration. The government did not
oppose his motion, and the court amended the judgment to reflect the change.
Two years later and citing 18 U.S.C. § 3572(d) and 18 U.S.C. § 3664(k), which
concern restitution, Hewitt again moved to modify the restitution order. Asserting
economic hardship, he asked the court to set a monthly payment schedule and argued
that the Bureau of Prisons could not set the schedule while he was in prison. (He asked
that 50% of the monthly payments come from any prison employment and only
between 10% and 20% of his entire income go to restitution.) The government had three
responses. First, it argued, the court did not have jurisdiction to consider a motion
under § 3664(k) to set a payment schedule. Second, it explained that under Sawyer the
Bureau of Prisons may and should set the payment schedule during incarceration.
Finally, it argued that Hewitt had, in his plea agreement and elsewhere, waived any
challenge to the restitution order.
The district court granted the motion in part and denied it in part. The court
identified in the judgment an ambiguity about when, after his release from prison,
Hewitt had to start paying down any outstanding balance of his restitution debt. It
therefore amended the judgment: For any unpaid balance, Hewitt must pay monthly
installments of 20% of his gross income “beginning 60 days after release” from prison.
(That modification, the government concedes, is “not at issue in this appeal.”) But the
district court declined to set a payment schedule during Hewitt’s incarceration,
deferring instead to the Bureau of Prisons. Hewitt appeals that latter decision.
We begin by briefly addressing the government’s argument that the district court
lacked jurisdiction over Hewitt’s request to have the court, rather than the Bureau, set a

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No. 22-2876 Page 3
payment schedule during his incarceration. Hewitt invoked § 3664(k), which permits a
court to “adjust the payment schedule” based on a material change in a defendant’s
economic circumstances. Whether Hewitt warranted relief on the merits of his motion is
separate from whether the district court had jurisdiction to consider it. See United States
v. Simon, 952 F.3d 848, 853 n.2 (7th Cir. 2020). Because Hewitt argued that his restitution
debt had become too onerous, the district court had jurisdiction to consider his motion
to adjust the schedule. See United States v. Goode, 342 F.3d 741, 743 (7th Cir. 2003).
But on the merits, the district court properly denied Hewitt’s request to schedule
restitution payments during his incarceration. First, based on his plea agreement,
Hewitt waived his argument that the district court may not allow the Bureau of Prisons
to schedule payments while he is incarcerated. See United States v. Hernandez, 44 F.4th
1053, 1057–58 (7th Cir. 2022). Regardless, Sawyer forecloses his argument that the
district court wrongly allowed the Bureau of Prisons to set a payment schedule during
incarceration. To the contrary, we wrote that “as a rule” the Bureau “should” do so.
521 F.3d at 794–96; see United States v. Hernandez, 952 F.3d 856, 861 (7th Cir. 2020).
Hewitt directs this court to contrary holdings from other courts of appeals, but Sawyer
addressed those cases and rejected their reasoning. 521 F.3d at 795. Hewitt does not
present any compelling reason to overrule our precedent. See Campbell v. Kallas, 936 F.3d
536, 544 (7th Cir. 2019). He alternatively argues that he is not asking the district court to
schedule payments but only to set a percentage of disposable funds for restitution
during his imprisonment. Again, that determination rests properly with the Bureau of
Prisons. See Sawyer, 521 F.3d at 794–96.
AFFIRMED

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