United States District Court, D. Arizona
HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT
REPORT AND RECOMMENDATION
S. Willett United States Magistrate Judge.
before the Court is the Defendant's Objection (Doc. 145)
to the percentage of his wages garnished pursuant to a Writ
of Continuing Garnishment (Doc. 142) to pay restitution
ordered in the 2nd Amended Judgment entered on
January 14, 2016 (Doc. 134). The Government filed its
Response to Defendant's Motion Regarding Restitution
Garnishment (Doc. 146). The matter was referred to the
Magistrate Judge by Senior District Judge Campbell on
December 10, 2018 for ruling (Doc. 147). After a stay of the
proceedings due to the Federal Government shutdown, a hearing
was scheduled and held on March 7, 2019 (Doc. 154).
Defendant's Exhibit 1 was admitted into evidence. The
Court heard testimony from U.S. Probation Officer Roy Moreno
and Cornelius Dozier, IV. Upon conclusion of oral argument,
the matter was deemed submitted for decision. The undersigned
has considered the testimony of the witnesses, exhibit
admitted into evidence, the file, and all information
April 28, 2014, the Defendant pled guilty to four counts of
Armed Bank Robbery, Class B felony offenses, in violation of
Title 18, U.S.C. § 2113 (a)(d). (Docs. 91, 92). Judgment
(Doc. 107) entered consistent with the plea agreement on
October 8, 2014 was amended by Orders issued on November 7,
2014 and January 14, 2016 (Docs. 119, 134). The Court
sentenced the Defendant to seventy (70) months at the Bureau
of Prisons, followed by five (5) years of supervised release
(Doc. 134). The Court ordered the Defendant to pay
restitution in the amount of $35, 121.43 in equal monthly
installments of $150 over a period of sixty-one (61) months
to commence sixty (60) days after release from prison to a
term of supervised release (Id.). The Defendant was
to begin making monthly $150.00 payments toward restitution
in January 2018. By November 2018, the Defendant had paid
only $200.00 toward restitution owed. That the Defendant
failed to pay restitution as ordered is undisputed.
October 23, 2018, the United States filed an Application for
Writ of Garnishment pursuant to 28 U.S.C. § 3205(c).
(Doc. 141). On October 24, 2018, the Clerk of Court issued a
Writ of Garnishment (Doc. 142). The Writ was served on
Defendant's employer, Sunfare, LLC, on October 31, 2018
(Doc. 143). On November 2, 2018, the United States sent a
copy of the Writ, the Clerk's Notice of Post Judgment
Garnishment and Garnishment Instructions to Judgment Debtor
to the Defendant by certified mail (Doc. 143). The Garnishee,
Sunfare, LLC, answered the Writ, filled out a Non-Exempt
Earnings Statement reflecting the Defendant's actual
income, and garnished the Defendant's non-exempt earnings
at the rate of twenty-five (25) percent (Doc. 144 at 2). The
Defendant received the Answer on November 2, 2018 (Doc. 144
at 3) and filed his Objection to the percentage used to
garnish his wages (Doc. 145). The Defendant requests that the
Court garnish his wages at the originally ordered amount of
$150.00 per month.
States Probation Officer (“USPO”) Moreno
testified that the Defendant was aware of his conditions of
supervised release, including his restitution payment
obligations, and signed the conditions of supervised release
in January 2018. Subsequently, USPO Moreno regularly
discussed with the Defendant his restitution obligation. USPO
Moreno provided the Defendant with budgeting paperwork to
assist the Defendant with meeting his obligations. Despite
being employed and financially able to pay for essential
expenses as well as having a surplus each month, the
Defendant nevertheless failed to pay restitution as ordered.
After a year of the Defendant's non-compliance with Court
ordered restitution payments, USPO Moreno initiated the
garnishment process. USPO Moreno testified that garnishment
of the Defendant's wages will assist the Defendant in
better budgeting for all his financial obligations.
Defendant testified that he has paid restitution whenever
able to do so. He works full-time with the possibility of
over-time and aspires to sell hand-made leather bags. The
Defendant shared pictures of beautifully designed back-packs
and bags that he made for family members while incarcerated.
He supports only himself. He is concerned that paying
restitution at the rate of twenty-five (25) percent of his
non-exempt earnings may “put him in a bind” as he
rebuilds his life. Specifically, the Defendant was concerned
regarding the possibility of any future car repair expenses.
Court has reviewed the financial expense information
contained in Exhibit 1. The Court finds that the
Defendant's monthly expenses are modest, reflecting an
ability to live within his means with appropriate budgeting.
The Defendant's earnings exceed his monthly expenses. The
Court finds that the Defendant can pay restitution at the
current garnished rate of twenty-five (25) percent of his
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 (9th 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.
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.
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). The
garnishment statute also contains a provision that allows the
judgment debtor, within twenty (20) days after receipt of the
answer, to object to the answer and request a hearing. 28
U.S.C. § 3205(c)(5). To the extent the Defendant's
Objection (Doc. 145) can be construed as a request for
hearing, the limitations set forth in § 3202(d) apply to
the Defendant's request.
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 his wages. This
is not a default judgment case. The Defendant simply
contested the garnishment based on financial hardship for
which he provided no supporting legal authority. The
undersigned finds that the Defendant has failed to meet his
burden of proof pursuant to 28 U.S.C. § 3202(d).
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. The Defendant's
claim of financial hardship is not supported by the record in
reasons set forth herein, IT IS RECOMMENDED
that the Court deny the Defendant's Objection which
requests the Court to quash, modify, or suspend the
garnishment of ...