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United States v. Rising

United States District Court, D. Colorado

July 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
1. GERALD R. RISING, JR., a/k/a GERRY RISING, Defendant.

          ORDER DENYING MOTION TO MODIFY RESTITUTION ORDER

          WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.

         This case was transferred to the undersigned upon the passing of Senior United States District Judge Wiley Y. Daniel. (ECF No. 166.) This case has an extensive factual and procedural history, with which the Court presumes familiarity.

         In 2011, Defendant Gerald R. Rising (“Rising”) pleaded guilty to Mail Fraud, Theft or Embezzlement in Connection with Health Care, Money Laundering, and Aiding and Abetting. (ECF Nos. 39 & 40.) A sentencing hearing was held on March 30, 2012, at which time Rising was sentenced to a term of 66 months of imprisonment and ordered to pay restitution in the amount of $3, 500, 000. (ECF No. 63.) On April 11, 2012, a criminal judgment was entered, memorializing Rising's term of imprisonment and amount of restitution owed. (ECF No. 64.) On May 30, 2012, Judge Daniel entered an order confirming restitution in the amount of $3, 500, 000 (“Restitution Order”; ECF No. 70).

         Since then, Rising has filed a plethora of various motions. (See, e.g., ECF Nos. 79, 80, 81, 98, 99, 100, 115, 120, 124, 130, 140, 160; see also ECF Nos. 104-1, 110, 134-1.) Notably, at least for the purposes of this Order, several of these motions seek modification of the Restitution Order. (ECF Nos. 79, 130, 160; see also ECF No. 80 at 8, 31-32; ECF No. 98 at 5.)

         Currently before the Court is one such motion-namely, Rising's Motion to Modify Restitution Order (“Motion”; ECF No. 160). In the Motion, Rising requests this Court to “(1) Order the Government to accurately calculate the actual loss directly attributable to Rising's acknowledged criminal conduct in accordance with United States v. Evans, 744 F.3d 1192 (10th Cir. 2014); and (2) Direct the Government to cease taking funds from his monthly social security benefits and to return the funds that have been taken to date.” (ECF No. 160 at 6.) The Court will address each of these requests in turn.

         I. MODIFYING THE RESTITUTION ORDER

         Rising's previous motions seeking modification of the Restitution Order were denied by Judge Daniel pursuant to 28 U.S.C. § 2255(h) as they were deemed successive Section 2255 motions that challenged the correctness of Rising's sentence. (ECF No. 136 at 5-6 (denying ECF Nos. 79 & 130).) In the Response, the Government argues that the Motion should be denied because, inter alia, it is Rising's fifth motion brought pursuant to Section 2255. (ECF No. 164 at 7-9.) In his Reply, Rising informs the Court that the “Motion is not intended [to] be a repetitive § 2255 Motion.” (ECF No. 165 at 3.)

         The Court finds that it need not determine whether the Motion was brought pursuant to Section 2255 because the Tenth Circuit has held that “a federal prisoner cannot challenge the restitution portion of his sentence using 28 U.S.C. § 2255 as a vehicle for such a challenge.” United States v. Grigsby, 579 Fed.Appx. 680, 684 n.1 (10th Cir. 2014); see also United States v. Satterfield, 218 Fed.Appx. 794, 796 (10th Cir. 2007) (“[defendant] cannot challenge the amount of restitution awarded by way of a § 2255 motion . . . .”). Rather, “a challenge to a restitution order should be brought on direct appeal within fourteen days following the judgment or order of restitution”-which Rising has not done. Grigsby, 579 Fed.Appx. at 684. Nevertheless, Rising's Restitution Order can still be modified or adjusted pursuant to the exceptions enumerated in 18 U.S.C. § 3664(o):

A sentence that imposes an order of restitution is a final judgment notwithstanding the fact that-
(1) such a sentence can subsequently be-
(A) corrected under Rule 35 of the Federal Rules of Criminal Procedure and section 3742 of chapter 235 of this title;
(B) appealed and modified under section 3742;
(C) amended under subsection (d)(5); or
(D) adjusted under section 3664(k), 3572, or ...

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