United States v. Sisneros

          REPORT AND RECOMMENDATION

          EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:

         Pending before the Court is the Defendant's Request for Post Judgment Garnishment Hearing (Doc. 36) and the Government's Response to Hearing Request (Doc. 42). The matter was referred to the Magistrate Judge by Senior United States District Judge Teilborg on January 7, 2019 for the purpose of conducting a garnishment hearing and entering related rulings (Doc. 37). After a stay of the proceedings due to the Federal Government shutdown, a hearing was scheduled and conducted on March 5, 2019. The matter was deemed submitted for decision. The undersigned has considered the file, testimony presented, and argument of the parties.

         On September 7, 2016, the Defendant pled guilty to Wire Fraud, a Class C felony offense, in violation of 18 U.S.C. § 1343. Judgment was entered consistent with the plea agreement on January 17, 2017, and the Defendant was sentenced to twelve months and one day in the Bureau of Prisons, followed by three years of supervised release. (Doc. 21). The Court ordered the Defendant to pay $772, 211. 73 in restitution to the victim(s) in the case in equal monthly installments of $300 over a period of 58 months, commencing sixty days after the date of Judgment. While incarcerated, the Defendant was ordered to make payments under the Bureau of Prisons Inmate Financial Responsibility Program. (Id.). The Defendant paid $50.00 toward restitution while incarcerated.

         Upon her release from prison, the Defendant voluntarily paid nothing toward her restitution balance, despite obtaining a job in March 2018. The Defendant earns $70, 000.00 per year as the general manager of a winery. The Defendant candidly recognized that she was aware of her obligation and failed to make any payments as ordered. The Defendant made no effort to pay anything toward her restitution judgment for twelve months subsequent to her release.

         On December 20, 2018, the Government filed an Amended Application for Writ of Garnishment pursuant to 28 U.S.C. § 3205(b)(1), and the Clerk of Court issued a Writ. (Doc. 32). The Writ was properly served on the Garnishee, the Defendant's employer. The Garnishee answered the Writ and filled out a Non-Exempt Earnings Statement reflecting the Defendant's income of $70, 000.00 per year (Doc. 42-1 at 2). That the Defendant was properly served with the Writ, Notice of Post Judgment Garnishment and Garnishment Instructions is undisputed (Doc. 34). The Defendant requested a hearing after her wages were successfully garnished. The Defendant requests that the Court return her restitution obligation to payments in the amount of $300.00 per month because the amounts deducted from her paycheck through garnishment are more than she believes she can afford. The Defendant aspires to support her mother and her minor children in her current home, while assisting one child with college tuition. The Defendant expressed remorse for not paying restitution as ordered.

         By statute, the Defendant's restitution order created a “lien in favor of the United States on all property and rights to property of [Defendant].” 18 U.S.C.§ 3613. The restitution order “may be enforced by the United States in the same manner that it recovers fines or ‘by all other available and reasonable means.'” United States v. Hester, No. 10CR2967 BTM, 2016 WL 1007335, at *2 (S. D. Cal. Mar. 14, 2016) (quoting 18 U.S.C. § 3664(m)(1)(A)(ii)). The United States “may enforce a restitution judgment ‘in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law.'” United States v. Berger, 574 F.3d 1202, 1204 (9^th Cir. 2009); 18 U.S.C. § 3613(a). The Federal Debt Collection Procedures Act provides explicit guidance regarding the use of writs of garnishment to recover a judgment on a debt. 28 U.S.C. § 3205.

         The existence of a periodic payment provision in this Court's restitution order does not preclude the United States from later seeking garnishment of the Defendant's wages. See United States v. Webb, 2014 WL 4371276 (D. Ariz. Sept. 4, 2014) (“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.”). Here, the United States waited a significant period before pursuing available statutory remedies under the law. Nothing in the Court's judgment prohibits the United States from pursuing this garnishment.

         Prior to an Answer having been filed, the Defendant may request a garnishment hearing on the following grounds: (i) the probable validity of any claim of exemption by the judgment debtor, (ii) compliance with any statutory requirement for the issuance of the garnishment, or (iii) certain circumstances related to a default judgment which are not applicable to this case. 28 U.S.C. § 3202(d). At the hearing, the Defendant did not dispute the United State's compliance with statutory procedures for obtaining the garnishment. Nor did the Defendant assert a claim to an exemption regarding the non-exempt portion of her wages. This is not a default judgment case. The Defendant simply contested the garnishment based on financial hardship for which she provided no supporting financial documentation or legal authority. The undersigned finds that the Defendant has failed to meet her burden of proof pursuant to 28 U.S.C. § 3202(d).

         The Court retains the discretion to modify or suspend a writ of garnishment based on the circumstances of the individual garnishee under 28 U.S.C.§ 3013. United States v. Ogburn, 499 F.Supp.2d 28, 31 (D. D.C. 2007). Based upon the information presented by the parties in this case, however, the undersigned finds that the twenty-five (25) percent garnishment of Defendant's non-exempt earnings is entirely reasonable and appropriate. Defendant's claim of financial hardship is not supported by the record in this case.

         For the reasons set forth herein, IT IS RECOMMENDED that the Court deny the Defendant's request to quash, modify, or suspend the garnishment of 25% of her non-exempt wages.

         This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of ...