     Case: 10-11282     Document: 00511641861         Page: 1     Date Filed: 10/24/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         October 24, 2011

                                     No. 10-11282                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee
v.

RICHARD LEON GOYETTE, also known as Michael Edward Jurek, also
known as Chris Bently,

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:09-CV-264


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Appellant Richard Leon Goyette, proceeding pro se, appeals from the
district court’s amended final order of garnishment, which enforced a restitution
order that was part of the sentence imposed for Goyette’s underlying criminal
conviction. Goyette alleges that during this garnishment action he was not




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-11282    Document: 00511641861     Page: 2   Date Filed: 10/24/2011



                                 No. 10-11282

afforded due process, and that numerous statutory violations and procedural
errors occurred. We affirm.
                              I. BACKGROUND
      In an earlier criminal case, Goyette pleaded guilty to one count of Threats
and False Information in violation of 18 U.S.C. § 844(e), and one count of
Threats and Hoaxes in violation of 18 U.S.C. § 1038(a)(1). As part of his
sentence, Goyette was required to pay $87,734.40 in restitution under the
Mandatory Victims Restitution Act (“MVRA”). A lien for this amount arose
automatically against Goyette pursuant to 18 U.S.C. § 3613(c).
      Since his sentencing, Goyette has proceeded pro se. He failed to timely file
the notice of appeal of his judgment of conviction and sentence. This court
remanded his untimely notice of appeal to the sentencing court to treat as a
motion for an extension of time to appeal. Finding no excusable neglect or good
cause to extend the time limit, the sentencing court denied the motion on
December 16, 2009.
      In October 2009, because Goyette refused to pay the restitution amount,
the United States initiated this garnishment action under the Federal Debt
Collection Procedures Act (“FDCPA”) to enforce the sentencing court’s restitution
order. The district court ordered the clerk to issue writs of garnishment, which
were all properly served on the garnishees. On December 14, 2009—two days
before the sentencing court denied his motion to extend the time limit for filing
an appeal in his criminal case—Goyette moved to quash a writ of garnishment
issued to Ameritrade, Inc., where Goyette had $339,085.03. He argued that his
criminal appeal challenged the bulk of the restitution order, and therefore he
should have the chance to appeal before his assets were garnished. The district
court denied the motion in January 2010, stating that Goyette had not objected
to the restitution order at sentencing, and that a challenge to the underlying



                                        2
   Case: 10-11282   Document: 00511641861      Page: 3   Date Filed: 10/24/2011



                                 No. 10-11282

restitution order was not a proper reason to quash a writ of garnishment in the
action to enforce that order.
      In January and February 2010, in response to the clerk’s sending a notice
of post-judgment garnishment, Goyette requested a hearing pursuant to 28
U.S.C. § 3202. The district court denied both requests, stating that Goyette had
requested the hearing in order to attack the restitution order, which was not
among the limited issues the statute set forth set forth in the statute to be
considered at such a hearing.
      In late February 2010, the United States moved for entry of a final order
of garnishment. In March 2010, Goyette filed—and the district court denied—a
motion to stay the judgment of restitution and a motion to quash the United
States’s attempt to collect a 10% surcharge on the restitution balance. The
district court entered its final order of garnishment on May 20, 2010.
      Goyette appealed the final order of garnishment and also filed a motion to
amend/correct the final order of garnishment. The district court entered an
amended final order of garnishment in June 2010, and this court dismissed
Goyette’s appeal as moot. United States v. Goyette, No. 10-10581 (5th Cir. Dec.
9, 2010) (per curiam). Goyette then filed another motion to amend/correct the
final order of garnishment, which the district court denied in November 2010.
This appeal followed.
           II. JURISDICTION AND STANDARD OF REVIEW
      As an initial matter, the United States challenges our jurisdiction, arguing
that Goyette did not timely file a notice of appeal. Goyette appeals from the
district court’s amended final order of garnishment, which was entered on June
23, 2010. It is true that Goyette filed his notice of appeal nearly six months
later, on December 20, 2010, but in the interim he had timely filed a motion to
amend/correct the amended final order of garnishment. Goyette’s filing of this
motion caused the time to file a notice of appeal to run from the entry of the

                                        3
     Case: 10-11282   Document: 00511641861     Page: 4   Date Filed: 10/24/2011



                                  No. 10-11282

order disposing of that motion, which was November 19, 2010. Fed. R. App. P.
4(a)(4)(A). Accordingly, we have jurisdiction because Goyette’s notice of appeal
was filed well within the 60-day window afforded litigants in suits involving the
United States. See Fed. R. App. P. 4(a)(1)(B).
        The res judicata effect of a prior judgment is a question of law that we
review de novo. In re Tex. Wyo. Drilling, Inc., 647 F.3d 547, 550 (5th Cir. 2011).
We review the district court’s denial of an evidentiary hearing for abuse of
discretion. See, e.g., United States v. Jimenez, 509 F.3d 682, 694 (5th Cir. 2007).
The district court’s findings of fact are reviewed for clear error and conclusions
of law are reviewed de novo. Fox v. Vice, 594 F.3d 423, 426 (5th Cir. 2010)
                               III. DISCUSSION
        In his pro se brief, which we construe liberally, see Windland v.
Quarterman, 578 F.3d 314, 316 (5th Cir. 2009), Goyette sets forth numerous
constitutional and statutory violations that he claims have afflicted this
garnishment proceeding. Essentially, he argues that: (1) he is entitled to an
evidentiary hearing at which he can challenge the amount of restitution imposed
as a part of his sentence; and (2) the district court abused its discretion by
imposing a 10% surcharge on the restitution amount under 28 U.S.C. § 3011.
A.      Goyette’s Right to a Hearing
        Throughout the garnishment proceeding, Goyette has disputed the amount
of restitution ordered at sentencing. He has repeatedly demanded a hearing
under 28 U.S.C. § 3202(d) to contest the amount of restitution ordered by the
sentencing court, and argues that the district court’s denial of such a hearing
violated his due process rights. Section 3202(d), however, permits a hearing only
on limited issues: (1) “the probable validity of any claim of exemption by the
judgment debtor,” (2) “compliance with any statutory requirement for the
issuance of the postjudgment remedy granted,” and (3) particular issues dealing
with default judgments. Id. Goyette did not claim an exemption, he did not

                                        4
     Case: 10-11282   Document: 00511641861      Page: 5   Date Filed: 10/24/2011



                                   No. 10-11282

show noncompliance with any statutory requirement for the issuance of a writ
of garnishment, and the judgment the United States sought to enforce was not
a default judgment. Instead, he reiterated his demand for a hearing at which to
contest the restitution order itself. As the district court correctly determined,
Goyette cannot use this garnishment proceeding to collaterally attack the
amount of restitution ordered in his criminal case. See Travelers Indem. Co. v.
Bailey, 129 S. Ct. 2195, 2205 (2009) (“[O]nce the [orders in the previous case]
became final on direct review . . . they became res judicata to the parties and
those in privity with them, not only as to every matter which was offered and
received to sustain or defeat the claim or demand, but as to any other admissible
matter which might have been offered for that purpose.” (quotation marks and
citations omitted); United States v. Adams, 363 F.3d 363, 365 (5th Cir. 2004)
(“Restitution under the MVRA . . . is a criminal penalty and a component of the
defendant’s sentence.”); cf. United States v. Guerra, 94 F.3d 989, 993 (5th Cir.
1996) (“[Procedural bar] arise[s] where a defendant had the opportunity to raise
contested issues in a direct appeal from his conviction but failed to do so.”).
B.      Surcharge on Restitution
        Goyette argues that the district court’s decision to impose a 10% litigation
surcharge on the balance of the restitution he owed was an abuse of discretion.
In a garnishment action to enforce a restitution order, the “United States is
entitled to recover a surcharge of 10 percent of the amount of the debt in
connection with the recovery of the debt, to cover the cost of processing and
handling the litigation and enforcement under this chapter of the claim for such
debt.” 28 U.S.C. § 3011(a); see also id. § 3205. The only exceptions to this
general rule are if the United States receives an award of attorney’s fees in
connection with the enforcement action, id. at § 3011(b)(1), or if “the law
purusant to which the action on the claim is based provides any other amount
to cover such costs,” id. at § 3011(b)(2).       Neither exception applies here.

                                          5
  Case: 10-11282    Document: 00511641861    Page: 6   Date Filed: 10/24/2011



                                No. 10-11282

Accordingly, the district court did not abuse its discretion by imposing the
statutorily permitted 10% litigation surcharge.
                            IV. CONCLUSION
      For the foregoing reasons, the amended final order of garnishment is
affirmed.
      AFFIRMED.




                                      6
