United States District Court, D. Arizona
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is the Defendant's Motion for Termination of Garnishment. The Court now rules on the motion.
On April 10, 2013, the Court entered an Amended Judgment ("Judgment") against Defendant. (Doc. 151). The Judgment ordered Defendant to immediately pay $2, 200 in restitution jointly and severally with two other liable parties, and a special assessment of $100. ( Id. at 2). Based on Defendant's ability to pay, the Court imposed a payment schedule consisting of quarterly payments of $25.00 over a period of 96 months commencing 30 days after Defendant's release from prison. ( Id. ). While Defendant is incarcerated, the Court imposed a payment schedule through the Prisons' Inmate Financial Responsibility Program, through which Defendant would make quarterly payments of at least $25.00. ( Id. ). As of June 9, 2014, Defendant remains liable for $2, 225.00 under the Judgment. (Doc. 179 at 2).
Defendant is a member of the Gila River Indian Community, and as such, he receives quarterly payments from the Gila River Indian Community's net gaming revenues. (Doc. 171 at 1-2). The United States filed an Application for Writ of Garnishment pursuant to 28 U.S.C. § 3205(c) on September 13, 2013 to direct these payments received from the Gila River Indian Community to Plaintiff. (Doc. 153 at 1). Defendant requested a hearing and presented arguments opposing the Writ of Garnishment. (Doc. 160 at 1). The Court rejected Defendant's arguments and denied his hearing request in the Garnishment Disposition Order on May 22, 2014. (Doc. 177).
Defendant filed the instant Motion for Termination of Garnishment on June 6, 2014 arguing: (1) that the Judgment has priority over the Garnishment Disposition Order pursuant to 28 U.S.C. § 3205(c)(8), and therefore, payment on the restitution balance should not begin until after his release from prison; and (2) that he should only have to pay one-third of the restitution because there are two additional liable parties. (Doc. 178 at 3).
A. Legal Standard
The Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. §§ 3663-64 (2012), gives the United States the power to enforce restitution orders in the same manner that it recovers fines or "by all other available and reasonable means." 18 U.S.C. § 3664(m)(1)(A)(ii). The United States may enforce a restitution judgment or fine "in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law." 18 U.S.C. § 3613 (2012). Accordingly, enforcement may include writs of garnishment as outlined in Section 3205 of the Federal Debt Collection Procedures Act of 1990, 28 U.S.C. §§ 3001-08 (2012). United States v. Mays, 430 F.3d 963, 965-66 (9th Cir. 2005).
Despite the existence of a payment schedule for restitution in a judgment, the United States may pursue immediate or adjusted enforcement of restitution as long as the judgment contains nothing to the contrary. United States v. Ekong, 518 F.3d 285, 286 (5th Cir. 2007); United States v. Clayton, 646 F.Supp.2d 827, 836 (5th Cir. 2009); see United States v. Pedro, No. CR-06-0513-PHX-ROS, 2011 WL 2262226, at *1, *4 (D. Ariz. May 16, 2011) (recommending that the Government's Application for Writ of Garnishment be granted despite the existence of a restitution payment plan for the defendant). Additionally, 18 U.S.C. § 3664(n) provides:
If a person obligated to provide restitution, or pay a fine, receives substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed.
Regarding the priority of orders relative to writs of garnishment:
Judicial orders and garnishments for the support of a person shall have priority over a writ of garnishment issued under this section. As to any other writ of garnishment or levy, a garnishment issued under this section shall ...