United States v. Diehl

848 F.3d 629

UNITED STATES of America, Plaintiff–Appellee

v.David Andrew DIEHL, also known as David A. Diehl, Defendant–Appellant

No. 15-51061

United States Court of Appeals, Fifth Circuit.

FILED February 13, 2017

Steven E. Seward, Joseph H. Gay, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, San Antonio, TX, for Plaintiff–Appellee.

David Andrew Diehl, USP Coleman II, Coleman, FL, for Defendant–Appellant.

Before PRADO, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

In October 2011, upon his conviction of ten counts of sexual exploitation of a child and child pornography, David Andrew Diehl was sentenced to 600 months in prison and five years of supervised release. Pursuant to 18 U.S.C. §§ 3013 and 3571, Diehl was also ordered to pay criminal monetary penalties consisting of a $1000 special assessment and a $1000 fine. At sentencing, the district court specified that the special assessment "shall be paid immediately." The district court did not specify when the fine was to be paid. The written judgment confirmed that "[p]ayment of [the special assessment] shall begin immediately." For the fine, the written judgment, unlike the oral pronouncement at sentencing, specified:

If the defendant is unable to pay this indebtedness at this time , the defendant shall cooperate fully with the office of the United States Attorney, the Bureau of Prisons and/or the United States Probation Office to make payment in full as so[o]n as possible, including during any period of incarceration .

(emphases added). On direct appeal, this court affirmed the judgment, and the Supreme Court denied Diehl's petition for a writ of certiorari. See United States v. Diehl , 775 F.3d 714 (5th Cir.), cert. denied , ––– U.S. ––––, 136 S.Ct. 213, 193 L.Ed.2d 163 (2015).

By September 2015, Diehl had only paid $446.46 toward his court-ordered monetary penalties, leaving a principal balance of $1,553.54. Upon discovering that Diehl held approximately $1,800 in his inmate trust account,¹ the Government filed an Application for Turnover Order under Texas's Turnover Statute, which "enables a judgment creditor to obtain a turnover order regarding nonexempt property in the debtor's possession or subject to the debtor's control."

United States v. Messervey , 182 Fed.Appx. 318, 320–21 (5th Cir. 2006) (unpublished); Tex. Civ. Prac. & Rem. Code Ann. § 31.002. In its Application, the Government asked that the district court order BOP to turn over as payment all but $1000 held in Diehl's inmate trust account. Diehl opposed the Application, which the district court granted on October 15, 2015. Diehl, who is proceeding pro se, appeals the district court's order and requests that this court remand with instructions "to refund the funds taken from [his] trust fund account."

Diehl challenges the district court's order on two grounds. First, Diehl suggests that the Federal Debt Collection Procedures Act (FDCPA) does not permit the Government's use of the Texas turnover statute to seek payment owed for outstanding monetary penalties. Second, Diehl argues that the Government cannot pursue immediate payment through application of funds in his inmate trust account, because he participates in BOP's Inmate Financial Responsibility Program (IFRP) and has faithfully adhered to the payment schedule set by the program.

DISCUSSION

For a defendant convicted of a felony, federal law requires the court to impose a special assessment of $100 for each count of conviction, 18 U.S.C. § 3013(a)(2)(A), and further authorizes the court to impose a fine of not more than $250,000, 18 U.S.C. § 3571(a).² 18 U.S.C. § 3572(d)(1) establishes the default rule that a defendant "sentenced to pay a fine or other monetary penalty ... shall make such payment immediately unless ... the court provides for payment on a date certain or in installments." If the court elects to provide for payment in installments, the installments must consist of equal monthly payments over a period of time specified by the court, unless the court provides an alternative payment schedule. Id. Further, when a judgment permits a form of payment "other than immediate payment," the court must specify "the length of time over which scheduled payments will be made[, which] ... shall be the shortest time in which full payment can reasonably be made." § 3572(d)(2). In other words, payment of a fine or special assessment is due immediately, unless the judgment lists a date certain for payment or specifies a monthly installment schedule or alternative payment plan. Acevedo v. Franco , 69 F.3d 535 (5th Cir. 1995) (unpublished) ("Payment of monetary fines are usually payable immediately unless otherwise directed by the district court. There is nothing in Acevedo's judgment which demonstrates any intent by the district court to alter the statutory intent of immediate payment of Acevedo's penal fine." (citation omitted)); see also United States v. Coluccio , 19 F.3d 1115, 1117 (6th Cir. 1994) ("Absent language specifying [a payment schedule], the statute demands immediate payment.... The New York District Court's judgment order did not specify when the fine was due and did not provide for an installment schedule. Therefore we find the court below correctly determined [the defendant's] criminal fine was due immediately.").

The Attorney General is "responsible for the collection of an unpaid fine" or special assessment. 18 U.S.C. § 3612 ; United States v. Pacheco–Alvarado , 782 F.3d 213, 218 (5th Cir.), cert. denied , ––– U.S. ––––, 136 S.Ct. 175, 193 L.Ed.2d 141 (2015). The Government is authorized under 18 U.S.C. § 3613(a) to collect criminal fines and special assessments "in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law." See also United States v. Phillips , 303 F.3d 548, 550–51 (5th Cir. 2002). Fines and special assessments are to be treated in the same manner as tax liens. 18 U.S.C. §§ 3013(b), 3613(c). " 18 U.S.C. § 3613(a)... creates a lien in favor of the United States, one which arises at the time of judgment and can be enforced against all property belonging to the person fined." Auclair v. Sher , 63 F.3d 407, 409 (5th Cir. 1995), as corrected (Oct. 13, 1995) (internal quotation marks omitted). "This lien ar[ises] automatically when a fine [is] imposed on [a defendant] as part of [the defendant's] sentence." United States v. Montoya–Ortiz , 31 Fed.Appx. 838, 838 (5th Cir. 2002) (unpublished).

"The federal law that provides the practices and procedures for the enforcement of a civil judgment is the FDCPA." Phillips , 303 F.3d at 551 (citing 28 U.S.C. §§ 3001 –3308 ). As we have previously observed, the FDCPA "was enacted ‘to create a comprehensive statutory framework for the collection of debts owed to the United States government.’ " United States v. Elashi , 789 F.3d 547, 552 n.3 (quoting H.R. Rep. No. 101–736 (1990)); see also Phillips , 303 F.3d at 551 ("The FDCPA provides the most effective means for the Government to enforce private victim restitution orders because it provides a uniform system for prosecutors to follow rather than resorting to the nonuniform procedures provided by the states."). However, while "the Act ultimately sought to transition away from the ‘patchwork’ of State laws governing collection procedures," it nonetheless "did not eliminate state-law collection mechanisms as options[.]" Elashi , 789 F.3d at 552 n.3 (quoting H.R. Rep. No. 101–736 (1990)). The text of the FDCPA itself clarifies: "To the extent that another Federal law specifies the procedures for recovering a claim or a judgment for a debt arising under such law, those procedures shall apply to such claim or judgment to the extent those procedures are inconsistent with this chapter." 28 U.S.C. § 3001(b). Section 3003(b)(2) further states that the FDCPA "shall not be construed to curtail or limit the right of the United States under any Federal law or any State law ... to collect any fine, penalty, assessment, restitution, or forfeiture arising in a criminal case."

Indeed, this court previously has approved the Government's use of the Texas turnover statute to collect a criminal debt—in that case, a criminal restitution order. Messervey , 182 Fed.Appx. at 321. We concluded that "[t]he United States possessed a valid lien on any properties owned by [the defendant], and it employed a valid state procedural vehicle to collect the debt due." Id. at 320–21 ; see also Coluccio , 19 F.3d at 1116 ("While the FDCPA does not preclude officials from utilizing other procedures to collect criminal fines, the law was enacted to create a comprehensive statutory framework for the collection of debts owed to the United States government, including criminal fines." (internal citations and quotation marks omitted)); United States v. Dimeglio , No. A–11–CR–411–SS, 2014 WL 1761674, at *10 (W.D. Tex. May 1, 2014) ("Although turnover orders are not among the remedies expressly contained in the FDCPA, § 3003(b) provides the FDCPA shall not be construed to limit the Government's right under state law," including the Texas turnover statute, "to collect a restitution judgment in a criminal case."). Therefore, we do not agree with Diehl that the FDCPA forecloses the ability of the Government to make use of state law collection mechanisms like the Texas turnover statute to collect unpaid criminal monetary penalties.³

We are also unpersuaded by Diehl's argument that his participation in IFRP and adherence to its payment schedule precludes the Government from using other available collection mechanisms to seek payment of the monetary penalties ordered in the court's judgment. The Inmate Financial Responsibility Program, established by BOP regulations, is "a work program designed to ‘help [the] inmate develop a financial plan’ to meet certain financial obligations, including the payment of court-imposed fines." Pacheco–Alvarado , 782 F.3d at 218 (quoting 28 C.F.R. § 545.11 ); see...