                Case: 15-13614    Date Filed: 04/28/2016   Page: 1 of 4


                                                              [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 15-13614
                               Non-Argument Calendar
                             ________________________

                     D.C. Docket No. 2:98-cr-00108-LSC-TMP-2



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

versus

BACKARI MACKEY,
a.k.a. Bakari Mackey,

                                                               Defendant-Appellant.

                             ________________________

                     Appeals from the United States District Court
                        for the Northern District of Alabama
                            ________________________

                                   (April 28, 2016)

Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

         Bakari Mackey appeals pro se the denial of his motion to reconsider his

request to enforce an order that suspended the collection of a fine imposed against
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him in a criminal action. After entry of that order, the Department of Justice

classified Mackey’s fine as past due and referred his debt to the Department of the

Treasury, which later seized the proceeds of a settlement that Mackey had received

in a civil action. Mackey moved to enforce the order that suspended collection of

his fine, to terminate the referral as erroneous, and to recover the settlement

proceeds. The district court denied Mackey’s motion and ruled that the government

was entitled to seize the settlement proceeds under a statute that requires an inmate

to reduce an outstanding fine with funds he receives “from any source.” 18 U.S.C.

§ 3664(n). Mackey filed a motion to reconsider and repeated his argument that the

referral was erroneous, but the district court summarily denied the motion. We

vacate the order denying Mackey’s motion to reconsider, and we remand for the

district court to consider Mackey’s argument to terminate the referral.

      We review an order denying a motion for reconsideration for abuse of

discretion. Equity Inv. Partners, LP v. Lenz, 594 F.3d 1338, 1342 (11th Cir. 2010).

“A person suffering legal wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant statute, is entitled to

judicial review thereof.” 5 U.S.C. § 702.

      The district court abused its discretion when it denied Mackey’s motion to

reconsider without considering his argument to terminate the referral. The district

court was obligated to address Mackey’s argument to “correct what he deems to be


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an error by the U.S. Attorney of [referring] . . . the . . . court-ordered fine” in order

to determine whether the Justice Department could refer his debt and to determine

the amount of that debt. The Justice Department may refer an outstanding fine to

the Treasury Department to collect through its Treasury Offset Program. 31 U.S.C.

§ 3716; 31 C.F.R. § 285.5. But the debt must be “past due,” 31 U.S.C.

§ 3716(c)(6)(A), and the Justice Department must, upon request of the debtor,

conduct an administrative review, id. § 3716(a)(3); 28 C.F.R. § 11.12(d)(1)–(6),

and give “written notice of its decision to the debtor,” id. § 11.12(d)(6), before

collecting through the offset program. The district court failed to consider

Mackey’s argument, raised in his motions to terminate and for reconsideration, that

his fine was not past due because the collection process had been suspended. The

district court also failed to consider whether the Justice Department complied with

its obligations to conduct an administrative review and to give Mackey written

notice of its decision.

      It is also unclear whether the referral affected the amount of Mackey’s debt.

In 1999, the district court imposed a fine of $25,000, and a statement that the

Bureau of Prisons issued in 2003 stated that Mackey owed $24, 919.33, but the

Justice Department referred a debt of $31,119.33. Nothing in the record explains

the additional $6,200 sought. Although the United States may charge penalties

when a fine is delinquent or in default, see 18 U.S.C. §§ 3572(h), 3572(i), 3612(g),


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it must notify the debtor of the delinquency or default, id. § 3612(d), (e), and there

is nothing in the record to suggest that the United States provided notice to

Mackey.

       The United States argues that Mackey “was not denied the opportunity for

review of his claims,” “his claims were without merit,” and he “failed to supply a

legal defense to his enrollment,” but these arguments are misplaced. Even if there

were sufficient information in the record to support these arguments, we would

leave them to the district court to address them in the first instance. Documents

submitted by the United States establish only that it gave Mackey notice of the

referral and that Mackey timely requested an administrative review.

       The United States also argues that “there is no requirement under 31 U.S.C.

§ 3716 that the government respond to a defendant’s unsupported claims,” but the

statute provides that a government agency “may collect by administrative offset

only after giving the debtor . . . an opportunity for a review . . . of the decision” to

refer. Id. § 3716(a)(3) 28 C.F.R. § 11.12(d)(1)–(6). The record does not reflect that

the Justice Department conducted an administrative review.

       We VACATE the order denying Mackey’s motion for reconsideration, and

we REMAND for the district court to consider Mackey’s argument to terminate

the referral.

       VACATED AND REMANDED.


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