     Case: 13-40822      Document: 00512859035         Page: 1    Date Filed: 12/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-40822                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                December 5, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

JOSEPH JAMES FALCETTA, JR.,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:96-CR-59-1


Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Joseph James Falcetta, Texas prisoner #822447, appeals from an order
granting the Government’s motion for the filing of a withdrawal notification
directing Texas prison authorities to withdraw funds from Falcetta’s prison
account to pay restitution ordered as part of his federal criminal sentence. For
the following reasons, we DISMISS the appeal for lack of jurisdiction.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                           FACTS AND PROCEEDINGS
       After hijacking and robbing a passenger bus at gunpoint in 1996,
Falcetta pled guilty to federal crimes of armed robbery of a motor vehicle and
possession of a firearm during a crime of violence. He was sentenced to 191
months of imprisonment and 5 years of supervised release. As part of his
federal sentence, Falcetta was also ordered to pay $108,595.79 in restitution.
That amount was due in full immediately. In state court, Falcetta was
convicted of aggravated robbery and sentenced to 44 years of imprisonment.
Falcetta v. State, 991 S.W.2d 295, 296 (Tex. App. 1999). Falcetta is currently
serving the state sentence in the Texas Department of Criminal Justice. He
has not yet started serving his federal prison sentence.
       On July 16, 2013, after Falcetta had already spent over a decade in the
Texas prison system, the Government moved the district court to order the
withdrawal of funds from Falcetta’s inmate trust account under section
501.014(e) of the Texas Government Code. 1 The district court signed the
requested “Order to Withdraw Funds” on July 18. Upon learning from Texas
prison officials that the order did not comply with state regulations related to
federal criminal judgments, the Government moved to amend the withdrawal
notification on July 23. The next day, on July 24, Falcetta moved for an
extension of time to respond to the Government’s motion to order withdrawal
of funds. 2 On July 25, the district court granted the Government’s motion for
an amended withdrawal notification, but did not mention or rule on Falcetta’s
motion for an extension of time. Falcetta filed a timely notice of appeal. 3



       1 According to the Government, Falcetta’s co-defendant, who is jointly and severally
liable for the restitution, has made some payments, but the outstanding balance is
$93,738.28.
       2 Falcetta’s motion is dated July 19 and postmarked July 22.
       3 Falcetta’s notice of appeal is dated July 23 and postmarked July 24. The notice only

appeals from the district court’s first withdrawal notification signed on July 18. We need not
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                                       No. 13-40822
       This court denied the Government’s motion for summary affirmance and
ordered briefing on the issue of whether this court has jurisdiction to review
the withdrawal notification. Falcetta and the Government have both filed
briefs addressing this jurisdictional issue.
                                      DISCUSSION
       The Government 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.” 18 U.S.C. § 3613(a), (f). In Texas, “[o]n notification
by a court, the [Texas Department of Criminal Justice] shall withdraw from
any inmate’s account any amount the inmate is ordered to pay by order of the
court under this subsection.” Tex. Gov’t Code Ann. § 501.014(e). Restitution
orders are listed as a type of obligation for which withdrawals may be made.
Id. § 501.014(e)(2). Under Texas law, a withdrawal notification “is not an
‘order’ in the traditional sense of a court order, judgment, or decree issued after
notice and hearing in either a civil or criminal proceeding.” Palomo v. State,
322 S.W.3d 304, 305 & n.1 (Tex. App. 2010) (per curiam); see also Harrell v.
State, 286 S.W.3d 315, 316 n.1 (Tex. 2009) (recognizing that section 501.014(e)
“describes the trigger as ‘notification by a court’” rather than order by a court
(emphasis added)). Instead, a withdrawal notification “is more akin to a
judgment nisi . . . [, which is] a provisional judgment entered when an accused
fails to appear for trial. . . . It is not final or absolute, but may become final.”
Palomo, 322 S.W.3d at 305 n.1. “Similarly, a withdrawal notification issued
pursuant to § 501.014(e), triggers a trust fund withdrawal, serves as notice of
the collection proceeding, and continues to operate unless the inmate takes
action causing the notification to be withdrawn.” Id. Thus, under Texas law, a


decide whether Falcetta’s notice of appeal deprived the district court of jurisdiction to enter
the amended withdrawal notification. Whether we analyze the original or the amended
notification, the analysis remains the same.
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withdrawal notification is not final or appealable until the state trial court
enters an order ruling on the inmate’s motion challenging the notification. See
Snelson v. State (Snelson I), 326 S.W.3d 754, 755–57 (Tex. App. 2010) (per
curiam) (finding no appellate jurisdiction because the state trial court had not
yet ruled on the inmate’s motion to rescind or modify the withdrawal
notification). Only after an inmate challenges the notification and the trial
court denies relief can the inmate appeal the withdrawal notification. See
Snelson v. State (Snelson II), 341 S.W.3d 582, 583–84 (Tex. App. 2011).
      Falcetta did not file a motion to rescind or modify the withdrawal
notification. Rather, he moved for an extension of time to object to the issuance
of the notification. Therefore, under Texas law, the withdrawal notification did
not constitute a final, appealable order, and a Texas appellate court would lack
jurisdiction to review it. See Ramirez v. State, 318 S.W.3d 906, 908 (Tex. App.
2010).
      Our jurisdiction, however, is determined by federal law, not state law.
Ramirez v. Martinez, 716 F.3d 369, 373 (5th Cir. 2013). Under 28 U.S.C. § 1291,
this court has jurisdiction over “appeals from all final decisions of the district
courts of the United States.” “As a general rule, an order is final only when it
ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment.” United States v. Branham, 690 F.3d 633, 635 (5th Cir.
2012) (per curiam) (internal quotation marks and citation omitted).
      Although this court has not considered section 501.014’s mechanism, it
has considered similar jurisdictional issues when reviewing garnishment
orders based on federal law. Cf. Harrell, 286 S.W.3d at 319 (comparing the
withdrawal-notification procedure to “a garnishment action or an action to
obtain a turnover order”). This court only has jurisdiction to review final
garnishment orders issued by district courts. See Branham, 690 F.3d at 635
(addressing a writ of garnishment to collect a restitution judgment in a
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criminal case). A court may enter a final order of garnishment only “after a
writ of garnishment has been issued, the garnishee has answered, and the
court has held a hearing (if one was requested and granted).” Id. In other
words, like withdrawal notifications under Texas law, a writ of garnishment is
not appealable; a final order of garnishment must be entered. Id.; see also Owen
v. State, 352 S.W.3d 542, 544–45 (Tex. App. 2011) (concluding that a trial
court’s ruling on a motion to rescind withdrawal notification “resulted in a
final, appealable order”).
      The withdrawal notification in Falcetta’s case is functionally similar to
the federal writ of garnishment in Branham, which was not a final, appealable
order. See 690 F.3d at 635. Had the Government obtained a writ of
garnishment under federal law and had Falcetta failed to respond, the writ of
garnishment would be nonfinal and non-appealable. See id. The Government,
however, chose to proceed under state law, presumably because Falcetta is
incarcerated in state prison. The Government is explicitly allowed to seek
enforcement of a restitution order using state-law practices and procedures. 18
U.S.C. § 3613(a), (f). Because the federal garnishment and state withdrawal-
notification procedures are functionally similar, see Harrell, 286 S.W.3d at 319,
we hold that the withdrawal notification is nonfinal and non-appealable. Thus,
any challenges to a withdrawal notification must initially be made to the
district court, and the notification becomes final only after the district court
rules on these challenges.
      Opposing this conclusion, Falcetta argues that this court has jurisdiction
over his appeal because the restitution order is part of his federal criminal
sentence. He also suggests that the restitution portion of his federal sentence
may not be enforced until he begins serving his federal prison term. Finally,
Falcetta argues that the withdrawal order is final and appealable because it is
“being enforced” against him.
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      Falcetta’s arguments are unavailing. First, although a restitution order
is a criminal penalty, a proceeding under § 501.014(e) to collect the restitution
amount is “civil in nature and not part of the underlying criminal case.”
Harrell, 286 S.W.3d at 316. Next, the restitution amount was due in full
immediately, and the Government “is required . . . to enforce victim restitution
orders ‘aggressively.’” United States v. Ekong, 518 F.3d 285, 286 (5th Cir. 2007)
(per curiam) (citation omitted). Finally, although an inmate is entitled to notice
and an opportunity to be heard, “neither need occur before the funds are
withdrawn.” Harrell, 286 S.W.3d at 321. Falcetta has received notice because
he received a copy of the withdrawal notification, and he has an opportunity to
be heard because he can file a motion seeking rescission or modification of the
withdrawal notification in the district court. See In re Hart, 351 S.W.3d 71, 75
(Tex. App. 2011). Therefore, Falcetta’s challenges to the withdrawal
notification in this court are premature and must be raised in the district court
in the first instance. See Branham, 690 F.3d at 635.
                                CONCLUSION
      For the foregoing reasons, we DISMISS the appeal for lack of
jurisdiction.




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