from the United States District Court for the District of
Kansas (D.C. No. 6:07-CR-10161-JMT-1)
M. Magariel, Assistant Federal Public Defender (Melody
Brannon, Federal Public Defender, with him on the briefs),
Office of the Federal Public Defender, Kansas City, Kansas,
for Appellant Kappelle Simpson-El.
S. Maag, Assistant United States Attorney (Thomas E. Beall,
Acting United States Attorney, and Tanya Sue Wilson,
Assistant United States Attorney, on the brief), Office of
the United States Attorney, District of Kansas, Topeka,
Kansas, for Appellee United States of America.
LUCERO and BACHARACH, Circuit Judges. [*]
BACHARACH, Circuit Judge.
appeal involves a criminal defendant's obligation to pay
restitution to the victims. A restitution payment schedule
can be modified when the defendant's economic
circumstances materially change. Here the criminal defendant
obtained a cash settlement growing out of a tort action
against the federal government. With this settlement, the
district court had to decide whether the defendant's
circumstances materially changed. The district court answered
"yes" and applied most of the settlement funds to
the restitution obligation. The defendant appeals, and we
The Restitution Order and the Settlement
defendant owing restitution is Mr. Kapelle Simpson-El, who
was convicted of crimes involving the sale of stolen cars.
His sentence included a restitution obligation of $432,
930.00. Since obtaining release, Mr. Simpson-El has paid at
least 5% of his gross monthly income toward restitution.
Simpson-El was injured while serving his prison sentence at a
federal prison. The injury was allegedly exacerbated by
inadequate medical attention and a lack of treatment, leading
Mr. Simpson-El to sue the federal government under the
Federal Tort Claims Act. After obtaining release from prison,
Mr. Simpson-El settled with the government for $200, 000.
The District Court's Ruling and Mr. Simpson-El's
government sought modification of the restitution order based
on a material change in economic circumstances, requesting an
order for Mr. Simpson-El to pay the entire $200, 000 as
restitution. The district court granted the motion in part,
applying $145, 640 of the settlement funds toward
restitution. Mr. Simpson-El makes two arguments on appeal:
1. The district court erred in finding that the settlement
funds constituted a "material change in economic
circumstances" under 18 U.S.C. § 3664(k).
2. The district court improperly applied 18 U.S.C. §