Westley Brian Cani v. United States, 331 F.3d 1210 (11th Cir. 2003). · Go Syfert
Westley Brian Cani v. United States, 331 F.3d 1210 (11th Cir. 2003). Cases Citing This Book View Copy Cite
67 citation events (67 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. James Sabatino (ca11, 2026-06-01)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 45 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. James Sabatino
11th Cir. · 2026 · signal: cf. · confidence medium
Cf. Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003) (construing a dismissal of a motion for lack of jurisdiction as a denial on the merits).
cited Cited as authority (rule) United States v. John Calandra
11th Cir. · 2024 · signal: cf. · confidence medium
Cf. Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003).
discussed Cited as authority (rule) United States v. Derrick Miller
11th Cir. · 2023 · signal: cf. · confidence medium
Cf. Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003) (construing a dismissal as a denial because the district court possessed subject-matter jurisdiction and should have denied the defendant’s motion on the merits).
discussed Cited as authority (rule) United States v. Brendan Paul Wagner
11th Cir. · 2023 · signal: cf. · confidence medium
Cf. Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003) (con- struing a dismissal as a denial because the district court possessed subject matter jurisdiction and should have denied the defendant's motion on the merits); see also Fed.
cited Cited as authority (rule) United States v. Nelson Cobo Hernandez
11th Cir. · 2023 · confidence medium
Cani v. United States, 331 F.3d 1210, 1212 (11th Cir. 2003); see United States v. Corbett, 921 F.3d 1032, 1035 (11th Cir. 2019).
discussed Cited as authority (rule) Brown v. United States
N.D. Ala. · 2022 · confidence medium
Moreover, “absent exceptional circumstances[,| . . . a criminal defendant who fails to object to the calculation of restitution at both [sentencing and again on direct appeal] loses the right to advance a challenge to this calculation.” Cani v. United States, 331 F.3d 1210, 1215 (11th Cir. 2003).
discussed Cited as authority (rule) United States v. Tarnawa (2×) also: Cited "see, e.g."
5th Cir. · 2022 · confidence medium
Substantively, a material change is “a bona fide change in the defendant’s financial condition, either positive or negative.” Cani v. United States, 331 F.3d 1210, 1215 (11th Cir. 2003) (citation omitted) (emphasis in original); see also United States v. Grigsby (Grigsby II), 579 F. App’x 680, 684 (10th Cir. 2014) (citing Cani, 331 F.3d at 1215 ).
discussed Cited as authority (rule) United States v. Fields
D.D.C. · 2020 · confidence medium
The Eleventh Circuit describes Cani v. United States, 331 F.3d 1210, 1215 (11th Cir. 2003) (finding a defedant ion inadequate because supported only by documentation of restitution payments made).
discussed Cited as authority (rule) Timothy Hatten v. United States
11th Cir. · 2019 · signal: cf. · confidence medium
Cf. Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003) (construing a dismissal as a denial on the merits where a petitioner raised only nonmeritorious arguments and the distinction made no significant difference in the case).
cited Cited as authority (rule) Norman Caison v. Secretary, Department of Corrections
11th Cir. · 2019 · confidence medium
Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003).
cited Cited as authority (rule) United States v. Chris J. McDonald, Sr.
11th Cir. · 2018 · confidence medium
Cani v. United States, 331 F.3d 1210, 1212 (11th Cir. 2003).
discussed Cited as authority (rule) United States v. Armstrong
D.D.C. · 2018 · confidence medium
The Eleventh Circuit, by comparison, has described the statute’s requirement as “a bona fide change in the defendant’s financial condition, either positive or negative.” Cani v. United States, 331 F.3d 1210, 1215 (11th Cir. 2003) (finding petitioner’s motion for modification inadequate because supported only by documentation of restitution payments made, not by a change in petitioner’s financial circumstances).
discussed Cited as authority (rule) United States v. Jeffrey Thomas Gola (2×) also: Cited "see"
11th Cir. · 2017 · confidence medium
See Arnaiz v. Warden, 594 F.3d 1326, 1330 (11th Cir. 2010); Cani v. United States, 331 F.3d 1210, 1213-14 (11th Cir. 2003).
discussed Cited as authority (rule) Lonnie Bernard Davis v. Warden, FCC Coleman - USP I (2×) also: Cited "see, e.g."
11th Cir. · 2016 · confidence medium
Additionally, we may construe a district court’s dismissal as a denial if the distinction “makes no significant difference.” Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003) (construing a district court’s dismissal for lack of subject-matter jurisdiction as a denial on the merits, and affirming); see also Boda v. United States, 698 F.2d 1174, 1177 (11th Cir. 1983) (affirming the dismissal of the civil suit, but modifying it so as to rest on an absence of jurisdiction).
cited Cited as authority (rule) United States v. Veronica Denise Dale
11th Cir. · 2015 · confidence medium
However, modification under this provision requires a “bona fide change in the defendant’s financial condition.” Cani v. United States, 331 F.3d 1210, 1215 (11th Cir.2003).
discussed Cited as authority (rule) United States v. Beau Diamond
11th Cir. · 2015 · signal: cf. · confidence medium
Cf. Cani v. United States, 331 F.3d 1210, 1216 (11th Cir.2003) (construing a dismissal as a denial because the district court possessed subject matter jurisdiction and should have denied the defendant’s motion on the merits).
discussed Cited as authority (rule) United States v. Brian Aldrich Dupree
11th Cir. · 2014 · confidence medium
In the light of that information, the district court had authority to adjust the order of restitution to reflect the “bona fide change in [Dupree’s] financial condition.” See Cani v. United States, 331 F.3d 1210, 1215 (11th Cir.2003).
discussed Cited as authority (rule) United States v. Scott Fawcett
11th Cir. · 2013 · signal: cf. · confidence medium
Cf. Cani v. United States, 331 F.3d 1210, 1216 (11th Cir.2003) (construing a dismissal as a denial because the district court possessed subject matter jurisdiction and should have denied the defendant’s motion on the merits).
discussed Cited as authority (rule) United States v. Garry Victor Frasier
11th Cir. · 2013 · signal: cf. · confidence medium
Cf. Cani v. United States, 331 F.3d 1210, 1216 (11th Cir.2003) (construing a dismissal as a denial because the district court possessed subject matter jurisdiction and should have denied the defendant’s motion on the merits).
discussed Cited as authority (rule) United States v. Jose L. Cazas (2×) also: Cited "see"
11th Cir. · 2012 · confidence medium
See 18 U.S.C. § 3664 (k); Cani v. United States, 331 F.3d 1210, 1215 (11th Cir.2003).
discussed Cited as authority (rule) United States v. John Cole
11th Cir. · 2012 · signal: cf. · confidence medium
Cf. Cani v. United States, 331 F.3d 1210, 1216 (11th Cir.2003) (construing a dismissal as a denial because the district court possessed subject matter jurisdiction and should have denied the defendant’s motion on the merits).
cited Cited as authority (rule) United States v. Lynda Guy
11th Cir. · 2009 · confidence medium
Cani v. United States, 331 F.3d 1210, 1214 (11th Cir.2003).
cited Cited as authority (rule) United States v. Armand A. Deangelis
11th Cir. · 2007 · confidence medium
Cani v. United States, 331 F.3d 1210, 1212 (11th Cir.2003).
discussed Cited as authority (rule) United States v. Michael Rini
11th Cir. · 2007 · confidence medium
A district court has limited discretion in calculating restitution and “must order restitution to each victim in the full amount of each victim’s losses for, inter alia, crimes against property.” Cani v. United States, 331 F.3d 1210, 1214 (11th Cir.2003) (quotation marks and citation omitted).
cited Cited as authority (rule) United States v. Cindy Kay Hanna
11th Cir. · 2006 · confidence medium
Cani v. United States, 331 F.3d 1210, 1212 (11th Cir.2003).
cited Cited as authority (rule) United States v. John C. George
11th Cir. · 2006 · confidence medium
Accordingly, we construe the district court’s denial of the motion as a dismissal, *928 Cani v. United States, 331 F.3d 1210, 1216 (11th Cir.2003), and AFFIRM. 1 .
cited Cited as authority (rule) Bernhard Dohrmann v. United States
11th Cir. · 2006 · confidence medium
Cani v. United States, 331 F.3d 1210, 1213-14 (11th Cir.2003).
discussed Cited as authority (rule) United States v. Hal Saxon McClamma, Jr. (2×) also: Cited "see"
11th Cir. · 2005 · confidence medium
Cani v. United States, 331 F.3d 1210, 1215 (11th Cir.2003).
cited Cited as authority (rule) United States v. Darren Lamont Keys
11th Cir. · 2005 · confidence medium
Cani v. United States, 331 F.3d 1210, 1213-14 (11th Cir.2003).
cited Cited "see" United States v. Christopher Glenn
11th Cir. · 2024 · signal: see · confidence high
See Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003).
discussed Cited "see" United States v. Todd Stephens (2×)
11th Cir. · 2024 · signal: see · confidence high
See Cani v. United States, 331 F.3d 1210, 1212 (11th Cir. 2003).
discussed Cited "see" United States v. Shirley Denise Burk
11th Cir. · 2022 · signal: see · confidence high
See Cani v. United States, 331 F.3d 1210, 1215 (11th Cir. 2003) (“[A]bsent exceptional circum- stances . . . a criminal defendant who fails to object to the calcula- tion of restitution at both of these stages of the judicial process”— during the criminal proceedings and on direct appeal—“loses the right to advance a challenge to this calculation.”).
discussed Cited "see" United States v. Eric C. Falkowski
11th Cir. · 2021 · signal: see · confidence high
See Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003) (construing district court’s dismissal for lack of jurisdiction as denial on the merits and affirming because the distinction between denial and dismissal makes no significant difference). 5 USCA11 Case: 20-13146 Date Filed: 06/01/2021 Page: 6 of 6 III.
cited Cited "see" United States v. Grigsby
10th Cir. · 2016 · signal: see · confidence high
See Grigsby II, 579 Fed.Appx. at 684 (citing Cani v. United States, 331 F.3d 1210, 1215 (11th Cir. 2003)).
cited Cited "see" Rhonda Fleming v. Warden of FCI Tallahassee
11th Cir. · 2015 · signal: see · confidence high
See Cani, 331 F.3d at 1216 .
examined Cited "see" United States v. Grigsby (3×) also: Cited "see, e.g."
10th Cir. · 2014 · signal: see · confidence high
See Cani v. United States, 331 F.3d 1210, 1215 (11th Cir.2003).
examined Cited "see" United States v. Nicole Grant (3×)
4th Cir. · 2013 · signal: see · confidence high
Once the victim or victims owed restitution are also notified, and the court finds that a material change has indeed occurred, the court is authorized to adjust the payment schedule "as the interests of justice require." Id.; see Cani v. United States, 331 F.3d 1210, 1215 (11th Cir. 2003).
discussed Cited "see" United States v. handy Bailey, Jr.
11th Cir. · 2013 · signal: see · confidence high
See Cani v. United States, 331 F.3d 1210, 1216 (11th Cir.2003) (construing district court’s dismissal for lack of jurisdiction as denial on the merits and affirming because the distinction between denial and dismissal makes no significant difference).
discussed Cited "see" United States v. Handy Bailey, Jr.
11th Cir. · 2013 · signal: see · confidence high
See Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003) (construing district court’s dismissal for lack of jurisdiction as denial on the merits and affirming because the distinction between denial and dismissal makes no significant difference).
cited Cited "see" United States v. Stanley Harvey Davis
11th Cir. · 2010 · signal: see · confidence high
See Cani v. United States, 331 F.3d 1210, 1212 (11th Cir.2003).
discussed Cited "see" Darrell Williams v. United States
11th Cir. · 2007 · signal: see · confidence high
See Cani v. United States, 331 F.3d 1210, 1216 (11th Cir.2003) (construing a district court’s dismissal as a denial and affirming the district court’s order); Cook v. Wiley, 208 F.3d 1314 , 1317 (11th Cir.2000) (reviewing the availability of habeas relief under § 2241 de novo).
discussed Cited "see" United States v. Mark Andrew Herman
11th Cir. · 2005 · signal: see · confidence high
See Cani v. United States, 331 F.3d 1210, 1215 (11th Cir.2003) (holding that 18 U.S.C. § 3664 (k) allows defendant to petition district court to modify restitution order upon subsequent change in defendant’s ability to compensate victim).
cited Cited "see" United States v. Surber
7th Cir. · 2004 · signal: see · confidence high
See Cani v. United States, 331 F.3d 1210, 1216 (11th Cir.2003).
discussed Cited "see, e.g." United States v. Armstrong
D.D.C. · 2020 · signal: see also · confidence medium
This substantial accumulation of deposits constitutes a “material change in the defendant’s economic circumstances” since November 2018. 18 U.S.C. § 3664 (k); see also Armstrong, 2018 WL 5923913 , at *6 (reviewing circuit courts’ definitions of this phrase as “an objective comparison of a defendant’s financial condition before and after a sentence is imposed,” United States v. Grant, 235 F.3d 95, 100 (2d Cir. 2000), and “a bona fide change in the defendant’s financial condition, either positive or negative,” Cani v. United States, 331 F.3d 1210, 1215 (11th Cir. 2003)); Uni…
discussed Cited "see, e.g." Alexander v. United States of America (INMATE 3)
M.D. Ala. · 2019 · signal: see, e.g. · confidence low
See, e.g., Cani v. United States, 331 F.3d 1210 , 1212–13 (11th Cir. 2003). *** Accordingly, it is ORDERED that the clerk of court is to: (1) Strike petitioner Charnesha Alexander’s “Motion Requesting Stay of Restitution” (doc. no. 31) from this civil action; and (2) Docket this same motion in the criminal case, United States v. Alexander, 3:14cr334-MHT (M.D.
Retrieving the full opinion text from the archive…
Westly Brian CANI, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee
02-12790.
Court of Appeals for the Eleventh Circuit.
May 29, 2003.
331 F.3d 1210
Westly Brian Cani, Coleman, FL, pro se., Kathleen M. Salyer, Anne R. Schultz, Miami, FL, for Respondenb-Appellee.
Barkett, Hull, Marcus.
Cited by 48 opinions  |  Published
MARCUS, Circuit Judge:

Westly Brian Cani, a federal prisoner proceeding pro se, appeals the dismissal of his “Petition for Recalculation of Amount and Manner of Payment of Restitution as per 18 U.S.C. § 3663.” On appeal, Cani argues that the district court erred by accepting the magistrate judge’s characterization of his claim as having been brought under 28 U.S.C. § 2255. He further contends that the district court’s restitution order was without a substantial basis in fact and that his economic circumstances changed so as to warrant a modification of his restitution payment schedule under 18 U.S.C. § 3664(k).

We typically review a district court’s calculation of restitution for abuse of discretion. See United States v. Davis, 117 F.3d 459, 462 (11th Cir.1997). However, where an objection to a restitution order is raised for the first time on appeal, it is reviewed only for plain error. See id.; see also United States v. Odom, 252 F.3d 1289, 1299 (11th Cir.2001), cert. denied, 535 U.S. 1058, 122 S.Ct. 1920, 152 L.Ed.2d 828 (2002). The underlying rationale is that “[effective appellate review is hindered when the asserted error has not been brought to the district court’s attention.” Davis, 117 F.3d at 462. This problem is greatly exacerbated when the defendant fails to raise his objections to a restitution order before the sentencing court and on direct appeal, and presents them for the first time only in a collateral proceeding. In such cases, absent exceptional circumstances, we will not consider objections to the district court’s initial restitution calculation.

Upon thorough review of the record and careful consideration of the parties’ briefs, we conclude that the district court erred insofar as it concluded that Cam’s petition to modify his restitution payment schedule based on changed economic circumstances[*1213] was not cognizable under 18 U.S.C. § S664(k). Accordingly, we address this claim on its merits. Upon doing so, however, we conclude that appellant’s argument is plainly unmeritorious. By contrast, Cani has waived his challenge to the district court’s initial restitution calculation, as he failed to raise it at sentencing or on direct appeal, and has demonstrated no exceptional circumstances that would excuse this failure. Because none of appellant’s claims warrant relief, we affirm the denial [1] of his petition.

The relevant facts are straightforward. Pursuant to a written plea agreement, Cani pled guilty to one count of assaulting a person having lawful custody of property of the United States with the intent to rob such property, in violation of 18 U.S.C. § 2114. Prior to sentencing, Cani objected to the presentence report, arguing that (1) he was entitled to a three-level sentencing reduction for acceptance of responsibility; and (2) he was entitled to a downward departure because the victim’s conduct provoked his offense behavior. The district court rejected both of these contentions and sentenced appellant to 96 months imprisonment and 3 years of supervised release, and ordered him to pay $4994.23 in restitution and a $100 assessment. On direct appeal, Cani challenged only the denial of the offense level reduction for acceptance of responsibility. On October 13, 1999, we affirmed appellant’s sentence.

Subsequently, on February 22, 2002, Cani filed the instant “Petition for Recalculation of Amount and Manner of Payment of Restitution as per 18 U.S.C. § 3663.” In support of this motion, he argued that (1) there was an insufficient factual basis at sentencing for the amount of restitution ordered; (2) the district court had failed to establish a payment schedule; and (3) he was being penalized by the Bureau of Prisons for his inability to pay restitution. The district court referred the motion to a magistrate judge, who reported and recommended that it be construed as a motion to vacate, set aside, or correct appellant’s sentence pursuant to 28 U.S.C. § 2255. The magistrate judge further suggested that this motion be denied, as § 2255 is not a mechanism by which an order of restitution may be attacked. See Blaik v. United States, 161 F.3d 1341, 1342 (11th Cir.1998). The district court adopted the Report and Recommendation in its entirety, and dismissed Cani’s motion. The district court ruled specifically that Cani’s challenge to the restitution order was not cognizable under § 2255, and that no relief was available under either 18 U.S.C. § 3582(c)(1)(A)(i) or 18 U.S.C. § 3663. This appeal ensued.

Preliminarily, we note that a single judge of this court found in an order dated August 26, 2002 that appellant’s petition is not properly construed as a 28 U.S.C. § 2255 motion. This determination was plainly correct. See Blaik, 161 F.3d at 1343 (“[Section] 2255 cannot be utilized by a federal prisoner who challenges only the restitution portion of his sentence because § 2255 affords relief only to those prisoners who 'claim[ ] the right to be released’ from custody.” (quoting 28 U.S.C. § 2255)). Accordingly, that aspect of the district court’s ruling was erroneous. Instead, we interpret Cani’s motion as (1) challenging the district court’s initial calculation of restitution in this case; and (2) alleging, pursuant to 18 U.S.C. § 3664(k), a change in his ability to pay.

We do not address the merits of the first claim, however, because by (1) failing to challenge the district court’s calculation of restitution before either that court or on direct appeal; and (2) failing to[*1214] demonstrate the existence of exceptional circumstances that would excuse this failure, [2] Cani has waived his right to object to the initial restitution calculation. See United States v. Woodworth, 39 Fed.Appx. 376, 377-78, 2002 WL 857755 (7th Cir.2002) (“Woodworth ... raises a number of objections to the underlying restitution order. Specifically, he argues that the district court erred by failing to take into consideration his ability to pay.... But the appropriate time for Woodworth to raise these arguments was during his original criminal proceedings, which he did not do.”); United States v. Cannistraro, 871 F.2d 1210, 1214 (3d Cir.1989) (“By failing to contest the underlying factors used by the district court imposing the order of restitution, Cannistraro has waived his right to contest this order.”); United States v. Ahmad, 225 F.3d 664 (9th Cir.2000) (table disposition) (“The district court ... properly declined to consider Ahmad's challenge to the restitution component of his sentence because he waived this issue by failing to raise it on direct appeal.”) (citation omitted); see also generally United States v. Collins, 20 Fed.Appx. 144, 145 (4th Cir.2001) (describing the waiver of the defendant’s objections to his sentence based on his failure to raise those objections on his direct appeal); Greene v. United States, 880 F.2d 1299, 1305 (11th Cir.1988) (“Petitioner’s claim ... was available on direct appeal as a basis on which to challenge his sentence. Thus, petitioner must demonstrate cause and actual prejudice before this Court will consider his argument on the merits.”). Indeed, although a restitution calculation may be contested for the first time on direct appeal, which will give rise to plain error review, we can find no case (and have been cited to none) in which a defendant has been permitted to advance such a challenge for the first time in a collateral proceeding.

The calculation of restitution is a matter over which district courts possess limited discretion. As we have explained, “[u]nder the Mandatory Victims Restitution Act[] [(‘MVRA’)], the district court must order restitution to each victim in the full amount of each victim’s losses for, inter alia, crimes against property.” United States v. Martinez, 320 F.3d 1285, 1288 (11th Cir.2003) (citations and internal punctuation omitted). Indeed, the MVRA explicitly excludes from the initial restitution calculation any consideration of the defendant’s ability to pay. 18 U.S.C. § 3664(f)(1)(A). Although the district court enjoys more flexibility and can consider the defendant’s financial circumstances in setting a schedule for the payment of restitution, the initial determination of the amount payable is limited to a valuation of the victims’ losses. See United States v. Futrell, 209 F.3d 1286, 1290 (11th Cir.2000) (“The plain language of the MVRA requires the district court to order restitution ‘in the full amount of each victim’s losses as determined by the district court.’ The government bears the burden of demonstrating the amount of the victim’s loss by a preponderance of the evidence.” (quoting 18 U.S.C. § 3664(f)(1)(A) and citing 18 U.S.C. § 3664(e))).

Plainly, this is a determination that necessarily is rooted in the evidence, and accordingly it should be made as temporally close to the presentation of the evidence as possible. Moreover, the benefits of a prompt, binding restitution calcu[*1215] lation on which the victim(s), the defendant and the court can rely are significant. Indeed, it is important to avoid upsetting all interested parties’ settled expectations regarding restitution at a time far removed from the district court’s calculation of the amount owed; over time, the degree of reliance on the original determination is likely to grow, and the details of the victims’ losses may become obscured by the passage of time and the degradation of the proofs upon which the district court’s original calculation was based. A prohibition on collateral attacks on such calculations plainly serves these important pragmatic and evidentiary functions. As the Sixth Circuit has said in a related context, “[given society’s substantial interest in the finality of judgments, only the most serious defects in the trial process will merit relief outside the normal appellate system.... Defendants must assert their claims in the ordinary course of trial and direct appeal.” Grant v. United States, 72 F.3d 503, 506 (6th Cir.1996) (citation omitted).

Moreover, limiting restitution challenges to sentencing proceedings and direct appeal also serves the equally significant goal of judicial economy. For these reasons— coupled with the fact that the defendant in every case is assured ample opportunity to challenge the district court’s calculation of restitution at sentencing and again on direct appeal — we conclude that absent exceptional circumstances not present in this case, a criminal defendant who fails to object to the calculation of restitution at both of these stages of the judicial process loses the right to advance a challenge to this calculation.

This does not mean, however, that a defendant who opts against challenging the initial calculation of restitution is precluded from subsequently notifying the district court and Attorney General “of any material change in [his] economic circumstances that might affect [his] ability to pay restitution.” 18 U.S.C. § 3664(k). [3] Indeed, there is an important difference between contesting the district court’s initial determination of the amount of the victim’s losses and, once that calculation has been made, asserting that the defendant’s ability to compensate the victim has changed. In this vein, the MVRA enables the district court to modify a restitution order to reflect subsequent losses discovered by the victim, see 18 U.S.C. § 3664(d)(5), or a bona fide change in the defendant’s financial condition, either positive or negative. See 18 U.S.C. § 3664(k). Thus, although Cani cannot contest the district court’s initial restitution calculation, his argument concerning his changed economic circumstances is fully cognizable under section 3664(k), and the district court erred insofar as it concluded otherwise. [4]

[*1216] On its merits, however, this contention is unpersuasive. Cani bases his assertion of changed economic circumstances on a printout showing his history of participation (and non-participation) in the Inmate Financial Responsibility Program at USP Coleman and a prepared summary of the consequences of refusing to participate in a financial responsibility program or to comply with a financial plan. However, neither of these documents demonstrate that appellant’s economic circumstances have changed in any way since the imposition of his sentence, and thus his present financial status is no different from that contemplated by the district court when it imposed the restitution order.

Accordingly, Cani is not entitled to relief based on his motion pursuant to section 3664(k). We note as a technical matter, however, that the district court should have denied the motion as opposed to dismissing it. The court plainly enjoyed subject matter jurisdiction in this case, and accordingly the appropriate disposition was a merits denial as opposed to a dismissal. However, given that none of the arguments raised by Cani are meritorious, in this case this is a distinction that makes no significant difference. As such, we construe the district court’s dismissal as a denial and affirm.

AFFIRMED.

1

. Although the district court technically dismissed the petition, for reasons more fully set forth infra, we construe this dismissal as a denial.

2

. Such circumstances would be analogous to a showing of "cause and actual prejudice” such as would render reviewable a constitutional claim asserted for the first time in a habeas corpus petition. See generally United States v. Canady, 126 F.3d 352, 359 (2d Cir.1997) (citing Reed v. Farley, 512 U.S. 339, 355, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994)) (other citation omitted).

3

. This subsection provides:

A restitution order shall provide that the defendant shall notify the court and the Attorney General of any material change in the defendant's economic circumstances that might affect the defendant’s ability to pay restitution. The court may also accept notification of a material change in the defendant’s economic circumstances from the United States or from the victim. The Attorney General shall certify to the court that the victim or victims owed restitution by the defendant have been notified of the change in circumstances. Upon receipt of the notification, the court may, on its own motion, or the motion of any party, including the victim, adjust the payment schedule, or require immediate payment in full, as the interests of justice require.

18 U.S.C. § 3664(k).

4

. Although it is unclear whether appellant has satisfied section 3664(k)'s requirement that he notify the Attorney General of a change in his financial circumstances, we assume for present purposes that it is in fact satisfied. Because we find the argument unavailing, we do not further address this "notification” requirement.