     Case: 14-10442      Document: 00512848758         Page: 1    Date Filed: 11/25/2014




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

                                    No. 14-10442
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                       November 25, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

EUGENE J. LOCKHART, JR.,

                                                 Defendant−Appellant.




                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:13-CV-1446




Before SMITH, WIENER, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge.*
       Eugene J. Lockhart, Jr., pleaded guilty of conspiracy to commit wire
fraud and bank fraud in violation of 18 U.S.C. §§ 1343–44 and 1349. He was



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 14-10442
sentenced to fifty-four months’ imprisonment and ordered to pay $2,436,079 in
restitution. For Lockhart to pay that obligation, the district court entered an
order garnishing his pension and disability payments, bank accounts, and
insurance policies. Lockhart appeals, pro se, the order on the grounds that it
differs from the criminal judgment and violates the Mandatory Victim Resti-
tution Act (“MVRA”) and public policy. We affirm.


                                       I.
      Lockhart claims that the order, which requires immediate payment of a
portion of his debt, is improper because it differs from the payment plan in the
criminal judgment, which specifies that lower restitution payments begin sixty
days after his release from custody. He misreads the judgment, which states
that restitution is “payable immediately” and “payable during incarceration”
and that the “payment plan shall not affect the ability of the United States to
immediately collect payment in full through garnishment . . . .” Furthermore,
the plan goes into effect only “[i]f upon commencement of the term of super-
vised release any part of the restitution remains unpaid . . . .” Lockhart has
not commenced supervised release, so the payment plan cannot be violated.
      Even under Lockhart’s characterization of the judgment, he all but con-
cedes that United States v. Ekong, 518 F.3d 285, 286 (5th Cir. 2007) (per
curiam), forecloses relief if it is binding on this panel. There we affirmed a
garnishment order requiring immediate payment despite that the judgment
had a payment plan similar to Lockhart’s. Id. Although speaking in terms of
res judicata, collateral estoppel, and waiver, Lockhart makes essentially the
same argument as did the plaintiff in Ekong—claiming that the payment plan
limits garnishment. We found that notion to be “without merit” under the
MVRA, 18 U.S.C. § 3613(a), which “was drafted to strengthen the ability of the


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                                       No. 14-10442
Government to collect criminal restitution . . . .” 1
       Lockhart’s attempt to distinguish Ekong is unavailing.                   Despite his
assertion, that case is published and binding on this panel; 2 that the plaintiff
was pro se has no effect on its precedential authority. Lockhart asks us to
revisit Ekong, but “one panel of this Court may not overrule another.” Cent.
Pines Land Co. v. United States, 274 F.3d 881, 893 (5th Cir. 2001). As with the
judgment in Ekong, nothing in Lockhart’s criminal judgment prevents the gov-
ernment from collecting restitution immediately in amounts greater than the
payment plan.


                                              II.
       Lockhart, a former NFL player, also disputes the scope of the order.
First, he claims that garnishment of his NFL pension should be limited to 25%
of his disposable earnings under § 3613(a)(3) of the MVRA; the Consumer
Credit Protection Act (“CCPA”), 15 U.S.C. § 1673; and United States v. DeCay,
620 F.3d 534, 543–44 (5th Cir. 2011) (holding that pension payments are sub-
ject to the CCPA’s 25% garnishment cap on “earnings”). That objection is moot
because the district court limited garnishment of his pension to 25%.
       Second, Lockhart contends that the 25% garnishment of his NFL sup-
plemental disability payments violates public policy and should be quashed. 3


       1 United States v. Phillips, 303 F.3d 548, 551 (5th Cir. 2002) (citation and internal
quotation marks omitted); see also United States v. Shusterman, 331 F. App’x 994, 996–97
(3d Cir. 2009) (per curiam) (citing Ekong in support of holding that “[t]he District Court did
not err in allowing garnishment as an additional means to collect the restitution judgment”
notwithstanding a payment plan at sentencing).
       2 Ekong was originally issued as an unpublished opinion, but on February 21, 2008,
this court granted the government’s motion to publish it.
       3Alternatively, Lockhart asks us to limit the garnishment of his disability benefits to
15%. He states that “the United States is deducting 15% of those payments” and, without
providing any reason, “prays the garnishment of his disability payments . . . are [sic] limited
to 15% of the total payment.” The order, however, garnishes 25% of the disability payments,
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                                       No. 14-10442
Given the clear congressional intent to facilitate victim recovery under the
MVRA, we decline to create a limitation where Congress has not. 4
       Finally, Lockhart maintains that garnishment should be limited to “25%
of [his] wife’s community interest in the community estate.” Read liberally,
the brief seems to posit that the CCPA’s 25% garnishment cap on “disposable
earnings” applies to his wife’s one-half interest in her solely managed commu-
nity property. 5
       Section 1673(a) applies to “disposable earnings” as defined in § 1672(a)
and (b) to mean “compensation paid or payable for personal services . . . .” “The
Supreme Court has cautioned that the terms ‘earnings’ and ‘disposable earn-
ings’ under the CCPA are ‘limited to periodic payments of compensation and
(do) not pertain to every asset that is traceable in some way to such compensa-
tion.’” 6 The only periodic payments in the garnishment order—the NFL pen-
sion and disability payments—are garnished at 25%. The order garnishes
money in bank accounts and insurance policies, but those are not “disposable
earnings” under § 1673(a) and therefore are not subject to its cap. 7
       The appealed-from garnishment order is AFFIRMED. 8




and we decline to reduce it to 15%.
       4 See also United States v. Ashcraft, 732 F.3d 860, 863–65 (8th Cir. 2013) (holding that
disability payments are “earnings” under the CCPA and subject to a 25% garnishment).
       5 See United States v. Loftis, 607 F.3d 173, 178–80 (5th Cir. 2010) (construing the
scope of a garnishment order on community property under Texas law).
       6DeCay, 620 F.3d at 543 (alteration in original) (quoting Kokoszka v. Belford, 417 U.S.
642, 651 (1974) (internal quotation marks omitted)).
       7See, e.g., Usery v. First Nat’l Bank, 586 F.2d 107, 108–11 (9th Cir. 1978) (holding
that wages do not retain their status as “earnings” under the CCPA once they are deposited
into an employee’s bank account); United States v. Tisdale, No. 3:12-CV-5250-L, 2013 WL
4804286, at *4 (N.D. Tex. Sept. 9, 2013) (same) (collecting cases).
       Lockhart’s motion to file a reply brief out of time is GRANTED. His motion to file
       8

an appendix to the reply brief out of time is GRANTED.
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