                Case: 13-13567      Date Filed: 04/23/2015      Page: 1 of 8


                                                                                [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-13567
                              ________________________

                        D.C. Docket No. 0:11-cr-60273-WPD-4



UNITED STATES OF AMERICA,

                                                                       Plaintiff - Appellee,

                                           versus

DALE PETERS,

                                                                    Defendant - Appellant.

                              ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                            ________________________

                                     (April 23, 2015)

Before MARTIN and FAY, Circuit Judges, and GOLDBERG, * Judge.


PER CURIAM:


*
 The Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting
by designation.
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       Dale Peters appeals the district judge’s final order denying his request for

transfer of Writ of Execution proceedings to California and a hearing by granting

the government’s Application for an Amended Writ of Execution, resulting from a

restitution judgment entered against Peters. We vacate and remand with

instructions.

                                   I. BACKGROUND

       Peters was convicted of one count of conspiring to defraud the United States

and thirty-one counts of filing false and fictitious claims on the United States in an

extensive tax-fraud conspiracy. On February 4, 2013, the district judge entered

final judgment against Peters, which included 144 months of imprisonment and

restitution of $5,362,039.69. We affirmed his conviction and sentence. United

States v. Peters, No. 13-10717, slip op. (11th Cir. Apr. 13, 2015).

       On June 6, 2013, the government filed an Application for Writ of Execution

to levy on real property Peters owned: a home, located at 21065 Christopher

Circle, Sonora, California 95370. His last known address was stated to be an

apartment, located at 221 South Fremont Street, Apt. 306, San Mateo, California

94401.1 A deputy clerk entered a Writ of Execution on Peters’s real property. On

June 7, 2013, the government filed an Amended Application for Writ of Execution


1
 Although the government listed Peters’s last known address in its Application for Writ of
Execution as the San Mateo apartment, it knew Peters was incarcerated in federal prison, because
of his criminal conviction for tax fraud.
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and listed Peters’s apartment in San Mateo, California, as his last known address

but failed to state the property to be seized and levied upon and its location.

Despite this defect, a deputy clerk entered an Amended Writ of Execution against

the property listed in the first Application for Writ of Execution.

       On July 1, 2013, Peters filed a Response to the Amended Application and

Amended Writ of Execution. He demanded a hearing and transfer of proceedings

to the district, where he resides. Peters contended (1) the property was exempt

from levy, and (2) the restitution order was not final, because his criminal appeal

was pending. This Response was filed by Peters’s court-appointed counsel for trial

and direct appeal in his criminal case, Michael G. Smith. In the Response, Smith

clarified he did not represent Peters in the Writ of Execution proceeding; he was

filing the Response to assist Peters in notifying the government of three facts: (1)

Peters was incarcerated at the United States Prison Camp at Atwater, California;

further correspondence with him should be sent to him at his address there2; (2)

Peters requested the Writ of Execution proceeding be transferred to the district

court with jurisdiction for Atwater, California; and (3) Peters requested a hearing

on the Amended Writ of Execution.




2
 Peters’s former, court-appointed counsel stated in Peters’s Response that his address was:
“Dale Peters, No. 68015-097, USP Atwater Camp Facility, P.O. Box 019001, Atwater, CA
95301.”
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       On July 26, 2013, the district judge concluded Peters’s real property was not

exempt from levy, because his restitution order had not been stayed. He found

transfer of the Writ of Execution proceedings was not appropriate and granted the

government’s Amended Application for Writ of Execution. Peters appeals this

final order.

                                       II. DISCUSSION

A. Appellate Jurisdiction under 28 U.S.C. § 1291

       This court has jurisdiction of “appeals from all final decisions of the district

courts of the United States.” 28 U.S.C. § 1291. “A final decision is typically ‘one

that ends the litigation on the merits and leaves nothing for the court to do but

execute its judgment.’” Mayer v. Wall St. Equity Grp., Inc., 672 F.3d 1222, 1224

(11th Cir. 2012) (quoting World Fuel Corp. v. Geithner, 568 F.3d 1345, 1348 (11th

Cir. 2009)). The appealed order effectively denied Peters’s request for a transfer

and hearing by authorizing the government to levy on his real property. The order

disposed of all issues remaining; therefore, it was a final decision over which we

have jurisdiction.3




3
  Peters challenges the district judge’s jurisdiction to enter the order after he had appealed his
criminal conviction. Peters did not post a supersedeas bond; consequently, he did not obtain a
stay of the final judgment. Without a stay, a judgment may be executed upon, even after an
appeal is filed. See, e.g., Nat’l Serv. Indus., Inc. v. Vafla Corp., 694 F.2d 246, 249–50 (11th Cir.
1982).
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B. Peters’s Transfer and Hearing Request

      Peters argues the district judge erred in not transferring his Amended Writ of

Execution proceedings to California for a hearing. We review de novo issues of

statutory interpretation, including the requirements of the Federal Debt Collection

Procedures Act (“FDCPA”), 28 U.S.C. § 3001 et seq. United States v. Duran, 701

F.3d 912, 915 (11th Cir. 2012). “The [FDCPA] ‘provides “the exclusive civil

procedures for the United States” to obtain satisfaction of a judgment in a criminal

proceeding that imposes a “fine, assessment, penalty, or restitution” in favor of the

United States.’” Id. (quoting United States v. Bradley, 644 F.3d 1213, 1309 (11th

Cir. 2011) (quoting 28 U.S.C. §§ 3001(a)(1), 3002(3)(B), 3002(8)) (alteration

omitted). “The [FDCPA] provides the United States several remedies to satisfy a

judgment, one of which is to obtain a writ of execution.” Id. (citing 28 U.S.C.

§§ 3202(a), 3203). The government may levy on “all property in which the

judgment debtor has a substantial nonexempt interest.” Id. (quoting 28 U.S.C.

§ 3203(a)) (alteration omitted).

      Upon commencing an action to recover property under the FDCPA, the

government must prepare, and the clerk of court must issue notice to the judgment

debtor with specific statutory language, including notice that a hearing must be

requested within 20 days of receiving notice, or the property to be levied upon may

be sold and the proceeds applied toward the money owed the government. Id.


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(citing 28 U.S.C. § 3202(b)). If the judgment debtor requests a hearing within 20

days of receiving notice, “[t]he court that issued such order shall hold a hearing on

such motion.” Id. at § 3202(d) (emphasis added). Moreover, “[i]f the debtor so

requests, within 20 days after receiving the notice . . . , the action or proceeding in

which the writ, order, or judgment was issued shall be transferred to the district

court for the district in which the debtor resides.” Id. at § 3004(b)(2) (emphasis

added). Using the verb “shall” in a statute is a command. In re Tennyson, 611

F.3d 873, 877 (11th Cir. 2010) (quoting Alabama v. Bozeman, 533 U.S. 146, 153,

121 S. Ct. 2079, 2085 (2001)). “Shall” creates an obligation not subject to judicial

discretion. Id. (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

523 U.S. 26, 35, 118 S. Ct. 956, 962 (1998)).

      The government filed its Application for a Writ of Execution on June 6,

2013. The deputy clerk issued the Writ of Execution the same day. The following

day, the government amended its application for a Writ of Execution, and the

deputy clerk entered an Amended Writ of Execution. On July 1, 2013, Peters filed

a Response to the Amended Writ of Execution, wherein he requested a hearing and

transfer of the Amended Writ of Execution proceeding to California, where he is

incarcerated. Peters also filed an affidavit attesting he did not receive notice of the




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Writ of Execution or the Amended Writ of Execution until June 26, 2013. 4 The

government does not dispute the timeliness of Peters’s filing. We find his requests

were timely under the circumstances we have stated. Therefore, the issue is

whether the district judge erred in refusing to transfer the Amended Writ of

Execution proceeding to California for a hearing.

       “In the interest of justice, courts want to provide criminal defendants with

the opportunity for a hearing and do not want to impose an inconvenience or undue

financial hardship on them by requiring that they . . . travel far distances to attend

these hearings.” United States v. Nash, 175 F.3d 440, 443 (6th Cir. 1999). In

cases where the convicted defendant is incarcerated, he is at the mercy of the court

to make it possible for him to attend a requested hearing. Because Peters requested

a transfer and a hearing, his Amended Writ of Execution proceeding should have

been transferred to the district, where he resides. Under the plain language of the

FDCPA, Peters’s request required the district judge to transfer his case to

California, where he is incarcerated. Nash, 175 F.3d at 442 (“Because the plain

language of this statute is mandatory, the district court must grant such a transfer as

long as [the request] is made in a timely manner.”). The district judge erred in

denying Peters’s request to transfer his Amended Writ of Execution proceeding to

California for a hearing.

4
 This delay was because of the government’s failure to send notice to Peters at the prison in
Atwater, California, where he was incarcerated.
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      The final order granting the government’s application for an Amended Writ

of Execution after Peters’s request for transfer is vacated; the case is remanded to

the district judge to enter an order transferring Peters’s Amended Writ of

Execution proceeding to the California district court with jurisdiction for a hearing

and decision.

      VACATED AND REMANDED WITH INSTRUCTIONS.




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