United States v. Gregory

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 27 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-137 D.C. No. 9:05-cr-00025-DWM-1 Plaintiff - Appellee, v. MEMORANDUM* JAY VAUGHAN GREGORY, Jr., AKA Jeremiah Gregory, Jr., AKA Jeremy Gregory, Jr., Defendant - Appellant. Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding Submitted November 20, 2024** Before: CANBY, TALLMAN, and CLIFTON, Circuit Judges. Jay Vaughan Gregory, Jr. appeals pro se from the district court’s order directing the Bureau of Prisons (“BOP”) to turn over funds in his inmate trust account for payment towards his restitution obligation. We have jurisdiction under * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 28 U.S.C. § 1291, and we affirm. Gregory concedes that three economic stimulus payments he received in 2022 and 2023 constitute resources from “any source” as defined in 18 U.S.C. § 3664(n). He contends, however, that debt encumbrances placed on funds in his inmate trust account constituted restitution payments, and the district court should have held an evidentiary hearing to determine whether the remaining funds were “substantial” under § 3664(n). The record reflects that, although the encumbered funds were not available to Gregory for his personal use, they remained in his account. Thus, the funds were properly subject to turnover under the Mandatory Victims Restitution Act. See 18 U.S.C. § 3664(n) (requiring an inmate who “receives substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration . . . to apply the value of such resources to any restitution . . . still owed”). Because the funds were plainly subject to turnover, the district court did not err by declining to hold an evidentiary hearing. Nor was an evidentiary hearing necessary on Gregory’s allegations that the BOP made materially false statements in communications with the United States Attorney’s Office, or that the district court improperly delegated its authority to the BOP, because neither assertion was supported by the record. See Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982) (an evidentiary hearing is not required if 2 24-137 the record conclusively demonstrates no basis for relief). Gregory’s motion for sanctions is denied. AFFIRMED. 3 24-137