     Case: 15-51061   Document: 00513872749        Page: 1   Date Filed: 02/13/2017




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

                                    No. 15-51061
                                                                             Fif h Circuit

                                                                           FILED
                                                                    February 13, 2017

UNITED STATES OF AMERICA,                                             Lyle W. Cayce
                                                                           Clerk
             Plaintiff - Appellee

v.

DAVID ANDREW DIEHL, also known as David A. Diehl,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      In October 2011, upon his conviction of ten counts of sexual exploitation
of a child and child pornography, David Andrew Diehl was sentenced to 600
months in prison and five years of supervised release. Pursuant to 18 U.S.C.
§§ 3013 and 3571, Diehl was also ordered to pay criminal monetary penalties
consisting of a $1000 special assessment and a $1000 fine. At sentencing, the
district court specified that the special assessment “shall be paid immediately.”
The district court did not specify when the fine was to be paid. The written
judgment confirmed that “[p]ayment of [the special assessment] shall begin
immediately.”     For the fine, the written judgment, unlike the oral
pronouncement at sentencing, specified:
     Case: 15-51061       Document: 00513872749         Page: 2    Date Filed: 02/13/2017



                                      No. 15-51061
       If the defendant is unable to pay this indebtedness at this time, the
       defendant shall cooperate fully with the office of the United States
       Attorney, the Bureau of Prisons and/or the United States
       Probation Office to make payment in full as so[o]n as possible,
       including during any period of incarceration.
(emphases added). On direct appeal, this court affirmed the judgment, and the
Supreme Court denied Diehl’s petition for a writ of certiorari. See United
States v. Diehl, 775 F.3d 714 (5th Cir.), cert. denied, 136 S. Ct. 213 (2015).
       By September 2015, Diehl had only paid $446.46 toward his court-
ordered monetary penalties, leaving a principal balance of $1,553.54. Upon
discovering that Diehl held approximately $1,800 in his inmate trust account, 1
the Government filed an Application for Turnover Order under Texas’s
Turnover Statute, which “enables a judgment creditor to obtain a turnover
order regarding nonexempt property in the debtor’s possession or subject to the
debtor’s control.” United States v. Messervey, 182 F. App’x 318, 320–21 (5th Cir.
2006) (unpublished); Tex. Civ. Prac. & Rem. Code Ann. § 31.002.                      In its
Application, the Government asked that the district court order BOP to turn
over as payment all but $1000 held in Diehl’s inmate trust account. Diehl
opposed the Application, which the district court granted on October 15, 2015.
Diehl, who is proceeding pro se, appeals the district court’s order and requests
that this court remand with instructions “to refund the funds taken from [his]
trust fund account.”
       Diehl challenges the district court’s order on two grounds. First, Diehl
suggests that the Federal Debt Collection Procedures Act (FDCPA) does not
permit the Government’s use of the Texas turnover statute to seek payment
owed for outstanding monetary penalties.              Second, Diehl argues that the



       1The purpose of an inmate trust account (or “commissary account”) “is to allow [BOP]
to maintain inmates’ monies while they are incarcerated.” 28 C.F.R. § 506.1. BOP regulations
provide that “[f]amily, friends, or other sources may deposit funds into these accounts.” Id.
                                             2
     Case: 15-51061      Document: 00513872749        Page: 3    Date Filed: 02/13/2017



                                     No. 15-51061
Government cannot pursue immediate payment through application of funds
in his inmate trust account, because he participates in BOP’s Inmate Financial
Responsibility Program (IFRP) and has faithfully adhered to the payment
schedule set by the program.
                                    DISCUSSION
      For a defendant convicted of a felony, federal law requires the court to
impose a special assessment of $100 for each count of conviction, 18 U.S.C.
§ 3013(a)(2)(A), and further authorizes the court to impose a fine of not more
than $250,000, 18 U.S.C. § 3571(a). 2 18 U.S.C. § 3572(d)(1) establishes the
default rule that a defendant “sentenced to pay a fine or other monetary
penalty . . . shall make such payment immediately unless . . . the court provides
for payment on a date certain or in installments.” If the court elects to provide
for payment in installments, the installments must consist of equal monthly
payments over a period of time specified by the court, unless the court provides
an alternative payment schedule. Id. Further, when a judgment permits a
form of payment “other than immediate payment,” the court must specify “the
length of time over which scheduled payments will be made[, which] . . . shall
be the shortest time in which full payment can reasonably be made.”
§ 3572(d)(2). In other words, payment of a fine or special assessment is due
immediately, unless the judgment lists a date certain for payment or specifies
a monthly installment schedule or alternative payment plan.                  Acevedo v.
Franco, 69 F.3d 535 (5th Cir. 1995) (unpublished) (“Payment of monetary fines
are usually payable immediately unless otherwise directed by the district
court. There is nothing in Acevedo’s judgment which demonstrates any intent
by the district court to alter the statutory intent of immediate payment of



      2  Special assessments “shall be collected in the manner that fines are collected in
criminal cases.” 18 U.S.C. § 3013(b).
                                            3
    Case: 15-51061     Document: 00513872749     Page: 4   Date Filed: 02/13/2017



                                  No. 15-51061
Acevedo’s penal fine.” (citation omitted)); see also United States v. Coluccio, 19
F.3d 1115, 1117 (6th Cir. 1994) (“Absent language specifying [a payment
schedule], the statute demands immediate payment. . . . The New York
District Court’s judgment order did not specify when the fine was due and did
not provide for an installment schedule. Therefore we find the court below
correctly determined [the defendant’s] criminal fine was due immediately.”).
      The Attorney General is “responsible for the collection of an unpaid fine”
or special assessment. 18 U.S.C. § 3612; United States v. Pacheco-Alvarado,
782 F.3d 213, 218 (5th Cir.), cert. denied, 136 S. Ct. 175 (2015).           The
Government is authorized under 18 U.S.C. § 3613(a) to collect criminal fines
and special assessments “in accordance with the practices and procedures for
the enforcement of a civil judgment under Federal law or State law.” See also
United States v. Phillips, 303 F.3d 548, 550–51 (5th Cir. 2002). Fines and
special assessments are to be treated in the same manner as tax liens. 18
U.S.C. §§ 3013(b), 3613(c). “18 U.S.C. § 3613(a) . . . creates a lien in favor of
the United States, one which arises at the time of judgment and can be
enforced against all property belonging to the person fined.” Auclair v. Sher,
63 F.3d 407, 409 (5th Cir. 1995), as corrected (Oct. 13, 1995) (internal quotation
marks omitted). “This lien ar[ises] automatically when a fine [is] imposed on
[a defendant] as part of [the defendant’s] sentence.” United States v. Montoya-
Ortiz, 31 F. App’x 838, 838 (5th Cir. 2002) (unpublished).
      “The federal law that provides the practices and procedures for the
enforcement of a civil judgment is the FDCPA.” Phillips, 303 F.3d at 551
(citing 28 U.S.C. §§ 3001–3308). As we have previously observed, the FDCPA
“was enacted ‘to create a comprehensive statutory framework for the collection
of debts owed to the United States government.” United States v. Elashi, 789
F.3d 547, 552 n.3 (quoting H.R. Rep. No. 101–736 (1990)); see also Phillips, 303
F.3d at 551 (“The FDCPA provides the most effective means for the
                                        4
    Case: 15-51061    Document: 00513872749      Page: 5   Date Filed: 02/13/2017



                                 No. 15-51061
Government to enforce private victim restitution orders because it provides a
uniform system for prosecutors to follow rather than resorting to the non-
uniform procedures provided by the states.”).        However, while “the Act
ultimately sought to transition away from the ‘patchwork’ of State laws
governing collection procedures,” it nonetheless “did not eliminate state-law
collection mechanisms as options[.]” Elashi, 789 F.3d at 552 n.3 (quoting H.R.
Rep. No. 101–736 (1990)). The text of the FDCPA itself clarifies: “To the extent
that another Federal law specifies the procedures for recovering a claim or a
judgment for a debt arising under such law, those procedures shall apply to
such claim or judgment to the extent those procedures are inconsistent with
this chapter.” 28 U.S.C. § 3001(b). Section 3003(b)(2) further states that the
FDCPA “shall not be construed to curtail or limit the right of the United States
under any Federal law or any State law . . . to collect any fine, penalty,
assessment, restitution, or forfeiture arising in a criminal case.”
      Indeed, this court previously has approved the Government’s use of the
Texas turnover statute to collect a criminal debt—in that case, a criminal
restitution order. Messervey, 182 F. App’x at 321. We concluded that “[t]he
United States possessed a valid lien on any properties owned by [the
defendant], and it employed a valid state procedural vehicle to collect the debt
due.” Id. at 320–21; see also Coluccio, 19 F.3d at 1116 (“While the FDCPA does
not preclude officials from utilizing other procedures to collect criminal fines,
the law was enacted to create a comprehensive statutory framework for the
collection of debts owed to the United States government, including criminal
fines.” (internal citations and quotation marks omitted)); United States v.
Dimeglio, No. A-11-CR-411-SS, 2014 WL 1761674, at *10 (W.D. Tex. May 1,
2014) (“Although turnover orders are not among the remedies expressly
contained in the FDCPA, § 3003(b) provides the FDCPA shall not be construed
to limit the Government’s right under state law,” including the Texas turnover
                                        5
     Case: 15-51061       Document: 00513872749          Page: 6     Date Filed: 02/13/2017



                                       No. 15-51061
statute, “to collect a restitution judgment in a criminal case.”). Therefore, we
do not agree with Diehl that the FDCPA forecloses the ability of the
Government to make use of state law collection mechanisms like the Texas
turnover statute to collect unpaid criminal monetary penalties. 3
       We are also unpersuaded by Diehl’s argument that his participation in
IFRP and adherence to its payment schedule precludes the Government from
using other available collection mechanisms to seek payment of the monetary
penalties ordered in the court’s judgment.                      The Inmate Financial
Responsibility Program, established by BOP regulations, is “a work program
designed to ‘help [the] inmate develop a financial plan’ to meet certain financial
obligations, including the payment of court-imposed fines.” Pacheco-Alvarado,
782 F.3d at 218 (quoting 28 C.F.R. § 545.11); see also Montano-Figueroa v.
Crabtree, 162 F.3d 548, 548 (9th Cir. 1998) (“The program provides for
development of a financial plan that allows inmates to pay certain enumerated
obligations, including court-ordered assessments, restitution, and fines.”).
Inmates participating in IFRP commit a percentage of funds earned through
prison employment toward payment of court-ordered monetary obligations.
Pacheco-Alvarado, 782 F.3d at 218. Participation in IFRP is voluntary. United
States v. Boyd, 608 F.3d 331, 334 (7th Cir. 2010). However, inmates who
decline to participate or fail to comply with their agreed upon financial plan
may face consequences such as limitations on work details or housing
placement. See id.; 28 C.F.R. § 545.11.



       3Although Diehl suggests that it was improper for the Government to enforce his debt
using a collection mechanism outside of those specifically listed in the FDCPA, he does not
suggest—nor did he before the district court—that the turnover order cannot issue on the
ground that the Government failed to establish the necessary elements for turnover under
Texas law. Because Diehl has not raised the issue, we do not address the question here.
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“Although we liberally construe the briefs
of pro se appellants, we also require that arguments must be briefed to be preserved.”
(quoting Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988))).
                                              6
    Case: 15-51061     Document: 00513872749      Page: 7   Date Filed: 02/13/2017



                                  No. 15-51061
      Neither party has identified a decision in this circuit or others
addressing the specific question of whether an inmate’s participation in IFRP
imposes on the judgment an installment plan that the court did not otherwise
provide, such that the Government may not seek collection of the inmate’s debt
so long as the inmate has not missed any IFRP payments. However, since the
parties submitted their briefs, the Seventh Circuit has addressed a
substantially similar question, holding that the Government could seek an
order directing BOP to turn over excess funds in an inmate account when the
judgment specified that restitution payment was “to begin immediately.”
United States v. Lemberger, No. 16-3020, --- F. App’x ---, 2017 WL 213188, at
*2 (7th Cir. 2017) (unpublished). In that case, the defendant similarly argued
“that, because he was already participating in the Bureau’s Inmate Financial
Responsibility Program to pay his restitution, the government could not take
the money from his inmate account.” Id. The court squarely rejected the
inmate’s argument, noting that “the program and the government’s ability to
collect restitution are not mutually exclusive. A restitution order ‘may be
enforced by the United States in the manner provided for’ in 18 U.S.C. §§ 3571–
3574 and §§ 3611–3615 . . . .” Id.
      A number of district courts have come to similar conclusions,
determining that an inmate’s compliance with an IFRP payment schedule does
not change the fact that the Government may collect on a criminal monetary
penalty immediately where the judgment does not specify a payment schedule.
See, e.g., United States v. Gibbs, No. 92-CR-30119, 2015 WL 5895461, at *1
(S.D. Ill. Oct. 8, 2015) (holding that “[the defendant’s] participation in the IFRP
does not preclude other means of payment as to his restitution,” including BOP
turning over to the Government surplus funds held in the defendant’s
commissary account); United Sates v. Blondeau, No. 09-CR-00117-H, 2011 WL
6000499, at *4 (E.D.N.C. Nov. 1, 2011) (“The fact that the Court allowed any
                                        7
     Case: 15-51061       Document: 00513872749          Page: 8     Date Filed: 02/13/2017



                                       No. 15-51061
remaining balance owed to be paid over time through the Inmate Financial
Responsibility Program and, post-release, through [monthly] installments . . .
does not preclude the government from immediately collecting restitution from
non-exempt assets.”); United States v. Nunez, No. CR-07-709, 2008 WL
3862094, at *1 (D.N.J. Aug. 18, 2008) (holding that “the Government may
collect on [Defendant’s] fine immediately, despite Defendant’s enrollment, at
this Court’s recommendation, in the IFRP”). 4
        Although these decisions are not binding on our court, we find their
reasoning persuasive. This court previously held that the Government may
pursue immediate payment or adjusted enforcement of restitution so long as
the judgment contains nothing to the contrary.               See United States v. Ekong,
518 F.3d 285, 286 (5th Cir. 2007). 5 Further, our court and others have made
clear that there is no conflict between a judgment providing for immediate
payment of monetary penalties and an inmate’s use of IFRP to satisfy that
debt.       See Wardell v. Longley, 532 F. App’x 580, 581 (5th Cir. 2013)
(unpublished); 6 McGhee v. Clark, 166 F.3d 884, 886 (7th Cir. 1999) (holding



        4 Cf. United States v. Shusterman, 331 F. App’x 994, 996–97 (3d Cir. 2009)
(unpublished) (upholding garnishment where the judgment provided that payment of
restitution was due immediately but also recommended that the inmate participate in IFRP
and provided a supervised release payment schedule in the event the inmate had not fully
paid restitution at the time of his release).
        5 See also United States v. Schwartz, 503 F. App’x 443, 446 (6th Cir. 2012)

(unpublished) (holding that when judgment provided that restitution be paid immediately,
but also provided for a payment schedule, garnishment was appropriate, “[b]ecause Schwartz
did not pay that portion of the restitution due . . . at the time the judgment was imposed, that
amount became an unpaid debt that the government could seek to collect immediately by all
available and reasonable means”).
        6 Cf. Pacheco-Alvarado, 782 F.3d at 219 (“Appellants . . . urge that the condition

scheduling payment of at least one-third of their monthly prison earnings interferes with
carefully calibrated IFRP procedures. Again we disagree. The district court has the authority
to impose a fine and provide for a payment schedule. Although the BOP is responsible for
collection of unpaid fines, IFRP regulations expressly countenance deviations from ‘ordinary’
processes when called for to meet an inmate’s specific obligations. We cannot conclude that
the district court’s order was improper.”).
                                               8
     Case: 15-51061       Document: 00513872749         Page: 9     Date Filed: 02/13/2017



                                       No. 15-51061
that when a sentencing court imposes a fine and special assessment due “in
full immediately,” the BOP’s payment schedule pursuant to IFRP did not
conflict with the sentencing court’s immediate payment order); Montano-
Figueroa, 162 F.3d at 550 (holding that, although payment was due
immediately pursuant to the judgment, “[b]ecause [the defendant] was
presumptively unable to pay, the prison program provided an avenue for
payment”).
       Put simply, although inmates may use IFRP as a vehicle for satisfying
unpaid special assessments and fines, a BOP-created IFRP payment schedule
does not supersede the terms of the court’s sentencing order.                     Nor does
participation in the program shield otherwise collectable assets from recovery
and nullify the Government’s statutory authority under § 3613(a) to collect on
its debt “in accordance with the practices and procedures for enforcement of
civil judgment under Federal law or State law,” so long as “[t]here is nothing
in the criminal judgment to the contrary.” Ekong, 518 F.3d at 286.
       Diehl does not dispute that his judgment provided for immediate
payment of the monetary penalties owed.                 Indeed, the judgment did not
establish a date certain or specify installment payments for satisfaction of
either the fine or the special assessment as required by 18 U.S.C. § 3572(d) to
disrupt the default rule of immediate payment. See Acevedo, 69 F.3d at 535.
The instruction for the special assessment stated so explicitly.                  Although
perhaps inartfully expressed, we read the instruction that Diehl pay the fine
“at this time” or, if he was not able to do so, “as so[o]n as possible” to have the
same effect. 7 In fact, in his briefing to us, Diehl himself insists that he had



       7 See Lemberger, 2017 WL 213188, at *1–2 (finding that the phrase “payment [is] to
begin immediately” as meaning, in actuality, that the defendant “pay what restitution he
could at the time of the judgment, even if the court did not set a payment schedule”); McGhee,
166 F.3d at 886 (describing the immediate payment directive as generally interpreted to
                                              9
    Case: 15-51061     Document: 00513872749       Page: 10    Date Filed: 02/13/2017



                                   No. 15-51061
$10,000 available at the time of the judgment and could have paid the fine in
full at that time. Thus, the Government’s enforcement of the order against
Diehl’s property, including surplus funds held in his inmate trust account, did
not exceed the terms of the original judgment.
      Accordingly we AFFIRM the district court’s order.




require “payment to the extent that the defendant can make it in good faith, beginning
immediately” (citation omitted)).
                                         10
