                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,             No. 16-30194
          Plaintiff-Appellee,
                                        D.C. No.
             v.                   3:98-cr-05168-RJB-1

LONNIE EUGENE LILLARD,
       Defendant-Appellant.               OPINION


     Appeal from the United States District Court
       for the Western District of Washington
     Ronald B. Leighton, District Judge, Presiding

         Argued and Submitted May 14, 2019
                Seattle, Washington

                  Filed August 28, 2019

 Before: Michael Daly Hawkins, William A. Fletcher,
         and Mark J. Bennett, Circuit Judges.

            Opinion by Judge W. Fletcher;
              Dissent by Judge Bennett
2                  UNITED STATES V. LILLARD

                            SUMMARY*


                           Criminal Law

    The panel reversed the district court’s order granting the
government’s motion pursuant to § 3664(n) of the
Mandatory Victims Restitution Act to seize funds in the
defendant’s inmate trust account to be applied to the
defendant’s outstanding restitution debt related to a prior
conviction.

    The defendant received the funds in his inmate trust
account while he was in pretrial detention awaiting trial on
federal bank fraud charges. Section 3664(n) provides that if
a person “receives substantial resources . . . during a period
of incarceration, such person shall be required to apply the
value of such resources to any restitution or fine still owed.”

    The panel held that the change in the defendant’s
custodial sentence – he pled guilty and was sentenced to 196
months imprisonment – does not render the case moot; and
that de novo rather than plain error review is appropriate.

    The panel held that the language and statutory context
favor the view that the phrase “period of incarceration” in
§ 3664(n) does not include pretrial detention, and that the rule
of lenity resolves any ambiguity in the defendant’s favor.

   Dissenting, Judge Bennett wrote that pretrial detention
qualifies as “a period of incarceration” under § 3664(n), and

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. LILLARD                   3

because the statutory language is unambiguous, the rule of
lenity does not apply.


                        COUNSEL

Lonnie Eugene Lillard, Sheridan, Oregon, pro se Defendant-
Appellant.

Gregory T. Murphy (argued), Assistant Federal Public
Defender, Office of the Federal Public Defender, Seattle,
Washington, for Amicus Curiae Office of the Federal Public
Defender.

Kyle A. Forsyth (argued), Assistant United States Attorney;
Annette L. Hayes, United States Attorney; United States
Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee.


                        OPINION

W. FLETCHER, Circuit Judge:

    Lonnie Lillard received $6,671.81 in his inmate trust
account while in pretrial detention awaiting trial on federal
bank fraud charges. When the United States Attorney’s
Office learned of his receipt of the $6,671.81, it sought to
apply the funds toward Lillard’s outstanding restitution debt
from an unrelated 1998 conviction. The United States moved
to seize Lillard’s funds pursuant to § 3664(n) of the
Mandatory Victims Restitution Act (“MVRA”), codified in
relevant part at 18 U.S.C. §§ 3613A, 3663A, 3664. Section
3664(n) of the MVRA provides that if a person “receives
4                UNITED STATES V. LILLARD

substantial resources . . . during a period of incarceration,
such person shall be required to apply the value of such
resources to any restitution or fine still owed.” 18 U.S.C.
§ 3664(n) (emphasis added). The United States argued that
§ 3664(n) applies to pretrial detainees because they are in
“federal custody.” Over Lillard’s pro se objection, the district
court ordered the seizure of the $6,671.81 pursuant to
§ 3664(n). On appeal, the Federal Defender, as amicus
counsel for Lillard, argues that the phrase “period of
incarceration” in § 3664(n) does not include pretrial
detention. We agree and reverse.

                        I. Background

        A. The Mandatory Victims Restitution Act

    The MVRA requires the district court to order full
restitution for certain crimes in which an “identifiable victim”
has suffered “physical injury or pecuniary loss.” 18 U.S.C.
§§ 3663A(c)(1)(A), (B); see Lagos v. United States, 138
S. Ct. 1684, 1687–88 (2018) (detailing the crimes and victim
losses covered by the MVRA).

    Section 3664 of the MVRA is entitled “Procedure for
issuance and enforcement of order of restitution.” 18 U.S.C.
§ 3664. It establishes procedures for the probation office,
defendant, identified victims, and district court to follow in
determining the amount of restitution the district court should
impose during a defendant’s sentencing. The probation
office, for example, is required to include in its presentence
report “information sufficient for the court to exercise its
discretion in fashioning a restitution order,” including
information on “the losses to each victim” and “the economic
circumstances of each defendant.” 18 U.S.C. § 3664(a). The
                 UNITED STATES V. LILLARD                     5

probation office must also notify all identified victims of the
“offenses of which the defendant was convicted,” in order to
allow the victims an opportunity to “submit information”
concerning their losses. 18 U.S.C. § 3664(d)(2)(A)(i), (iii).
The defendant must file “an affidavit” describing his financial
resources, needs, and earning capacity.            18 U.S.C.
§ 3664(d)(3).

    When a district court orders restitution it must “specify in
the restitution order the manner in which, and the schedule
according to which, the restitution is to be paid . . . .”
18 U.S.C. § 3664(f)(2). If a defendant cannot pay full
restitution “under any reasonable schedule of payments,” the
district court may order “nominal periodic payments” in
perpetuity. 18 U.S.C. § 3664(f)(3)(B).

    Once a restitution order is in place, the defendant must
notify the court “of any material change in the defendant’s
economic circumstances that might affect the defendant’s
ability to pay restitution.” 18 U.S.C. § 3664(k). Ordinarily,
the district court addresses changed economic circumstances
under § 3664(k) of the MVRA. Under § 3664(k), a district
court “may . . . adjust the [defendant’s] payment schedule, or
require immediate payment in full, as the interests of justice
require.” Id. (emphasis added). In one narrow circumstance,
however, the MVRA “require[s]” that newly received funds
be applied toward restitution. 18 U.S.C. § 3664(n). Section
3664(n) provides:

        If a person obligated to provide restitution, or
        pay a fine, receives substantial resources from
        any source, including inheritance, settlement,
        or other judgment, during a period of
        incarceration, such person shall be required to
6               UNITED STATES V. LILLARD

       apply the value of such resources to any
       restitution or fine still owed.

Id. (emphasis added). This appeal requires us to interpret the
phrase “period of incarceration” in § 3664(n).

          B. Factual and Procedural Background

    In 1998, Lonnie Lillard pleaded guilty to Possession of
Counterfeited Securities and a related count of Conspiracy.
The district court sentenced Lillard to 34 months
imprisonment and ordered him to pay $79,130.55 in
restitution. The district court did not specify a minimum
payment schedule for the restitution order. Instead, the court
ordered the restitution amount due “in full immediately,”
despite finding that “Mr. Lillard has no income or assets or
the likelihood of either in the immediate future.” Lillard
made almost no restitution payments during the following
years and the government made no discernible effort to
collect any from him.

    In January 2016, the United States charged Lillard with
Conspiracy to Commit Bank Fraud. Pending trial, Lillard
was held in pretrial detention at the Federal Detention Center,
SeaTac, near Seattle, Washington. While in pretrial
detention, Lillard received $6,671.81 in his inmate trust
account. The source of the funds is unclear. Lillard had
planned to use some of the funds to pay for legal assistance
in his pending case. He also claims to have planned to use
some of the money to communicate with friends and family,
to “periodically help[] out his parents who are 91 and
80 years old,” and to purchase items from the inmate
commissary.
                UNITED STATES V. LILLARD                     7

    When the U.S. Attorney’s Office learned of the
$6,671.81, it took steps to seize the full sum and apply it
toward Lillard’s 1998 restitution obligation. At the request of
the U.S. Attorney’s Office, the Bureau of Prisons encumbered
Lillard’s account to prevent him from accessing the funds.
An Assistant United States Attorney then filed with the
district court a Motion to Require Payment from Inmate Trust
Account. The motion sought a court order allowing the
government to seize the $6,671.81 pursuant to § 3664(n) of
the MVRA, which applies only to funds received during a
“period of incarceration.” 18 U.S.C. § 3664(n). The
government argued that § 3664(n) applied “squarely” to
Lillard because he was in “federal custody” while in pretrial
detention.

    Lillard responded pro se to the government’s motion. He
argued that any modification of his restitution obligation
should be made under § 3664(k), the MVRA provision
governing restitution order modifications, rather than under
§ 3664(n). He also argued, citing Ward v. Chavez, 678 F.3d
1042 (9th Cir. 2012), that his 1998 restitution order is
“unlawful” because the district court had not set a minimum
payment schedule despite finding that Lillard was unable to
pay in full immediately. Lillard requested an evidentiary
hearing and that counsel be appointed to represent him.

    The district court appointed counsel and granted a
continuance to allow counsel time to prepare a response.
Counsel did not file a response, however, until after the
deadline had passed, and then filed only an informal
memorandum and a request for another continuance to allow
for “further research and investigation.” The district court
denied both counsel’s request for a continuance and Lillard’s
request for an evidentiary hearing.
8                UNITED STATES V. LILLARD

     On August 3, 2016, more than three months before
Lillard’s scheduled trial date on his criminal charge, the
district court issued a two-page order granting the
government’s motion. The order directed the Bureau of
Prisons to pay $6,671.81 from Lillard’s inmate trust account
to the Clerk of the U.S. District Court for the Western District
of Washington, to be applied toward Lillard’s 1998 restitution
obligation.

    Lillard appealed pro se the district court’s order. We
appointed the Federal Defender for the Western District of
Washington (“Amicus”) as amicus counsel. We directed
Amicus to address, along with other issues, whether
18 U.S.C. § 3664(n) applies to (1) pretrial detention, and
(2) detention or incarceration unrelated to the judgment
imposing the restitution order. As to issue (1), we agree with
Amicus that § 3664(n) does not apply during periods of
pretrial detention. We therefore reverse the district court’s
August 3, 2016 order. We do not reach issue (2).

    We have jurisdiction under 28 U.S.C. § 1291.

                        II. Discussion

    This appeal presents the issue whether the phrase “period
of incarceration” in 18 U.S.C. § 3664(n) includes a period of
pretrial detention. Amicus argues that § 3664(n) “appl[ies]
only when a defendant is ‘incarcerated’ following ‘conviction
of an offense,’ and should not apply when the presumptively-
innocent defendant is detained before trial.” The government
makes three arguments in response: First, that Lillard’s claim
is moot because he has since been incarcerated following a
conviction for Conspiracy to Commit Bank Fraud; second,
that we may review the district court’s interpretation of
                 UNITED STATES V. LILLARD                     9

“period of incarceration” only for plain error because Lillard
waived this argument below; and third, that even under de
novo review, the district court did not err in interpreting
§ 3664(n). We hold that Lillard’s action is not moot, that de
novo review is appropriate, and that § 3664(n) does not apply
during periods of pretrial detention.

              A. Lillard’s Action is Not Moot

    During the pendency of this appeal, Lillard pleaded guilty
to Conspiracy to Commit Bank Fraud, was sentenced to
196 months imprisonment, and was ordered to pay over five
million dollars in restitution. The government argues that the
change in Lillard’s custodial status renders his case moot.

    “A case is moot when the ‘parties lack a legally
cognizable interest in the outcome.’” Johnson v. Rancho
Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1020 (9th Cir.
2010) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S.
388, 396 (1980)). Lillard’s interest in this appeal is apparent.
If we vacate the district court’s order, the government must
return the $6,671.81 it has seized.

    The government argues that this outcome would not
provide Lillard “effective relief” because his funds can be re-
seized under § 3664(n), given the change in his custodial
status. See In re Castaic Partners II, LLC, 823 F.3d 966,
968–69 (9th Cir. 2016) (“The test for mootness of an appeal
is whether the appellate court can give the appellant any
effective relief in the event that it decides the matter on the
merits in his favor.” (citation omitted)). The government
assumes that because Lillard is currently subject to
incarceration following a conviction, § 3664(n)
“undisputedly” applies to him. The assumption is mistaken.
10               UNITED STATES V. LILLARD

Section 3664(n) applies only if a defendant “receives
substantial resources . . . during a period of incarceration.”
18 U.S.C. § 3664(n) (emphases added). Though we take no
position on the matter, it is debatable (“disputable”) whether
the return of funds improperly seized during pretrial detention
to a defendant now in post-conviction incarceration qualifies
as receipt of substantial resources “during a period of
incarceration” within the meaning of § 3664(n). Id. It is also
debatable whether the $6,671.81 sum constitutes “substantial
resources.” Since the district court issued its order, at least
one court has held that “substantial resources” under
§ 3664(n) refers narrowly to “windfalls or sudden financial
injections.” United States v. Hughes, 914 F.3d 947, 951 (5th
Cir. 2019).

    Finally, Lillard’s action is not moot even though the
government may attempt, in the alternative, to re-seize his
funds pursuant to § 3664(k). As noted above, § 3664(k)
grants the district court discretion in addressing a defendant’s
changed economic circumstances, allowing for potential
“effective relief” on remand. Castaic Partners II, 823 F.3d
at 968. Lillard’s appeal is therefore not moot.

          B. Plain Error Review Does Not Apply

    “The ordinary rule in criminal cases—established by
Federal Rule of Criminal Procedure 52(b) and by Supreme
Court precedent—is that ‘plain error’ review applies to
arguments raised for the first time on appeal.” United States
v. Yijun Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016). The
government argues that we should review the district court’s
interpretation of § 3664(n) for plain error because Lillard did
not argue below that § 3664(n) applies only to periods of
                 UNITED STATES V. LILLARD                     11

incarceration following a conviction. We hold that de novo,
rather than plain error, review is appropriate for three reasons.

    First, “plain error review typically applies where an issue
raised on appeal was not ‘brought to the [district] court’s
attention.’” United States v. Pallares-Galan, 359 F.3d 1088,
1095 (9th Cir. 2004) (emphasis and alteration in original)
(quoting Fed. R. Crim. Proc. 52(b)). The government argued
before the district court that § 3664(n) applied to Lillard
because, as a pretrial detainee, he was in “federal custody.”
The issue of whether § 3664(n) applies to periods of pretrial
detention was thus brought to the district court’s attention.

    Second, “[o]nce a . . . claim is properly presented, a party
can make any argument in support of that claim . . . .” Yee v.
Escondido, 503 U.S. 519, 534 (1992) (string cite omitted).
“[I]t is claims that are deemed waived or forfeited, not
arguments.” Pallares-Galan, 359 F.3d at 1095. Lillard
claimed below that § 3664(k), rather than § 3664(n), was the
proper provision under which to address his changed
economic circumstances. Amicus’s argument that § 3664(n)
does not apply to pretrial detainees is a further argument in
support of that claim.

     Third, when this court is “presented with a question that
is purely one of law and where the opposing party will suffer
no prejudice as a result of the failure to raise the issue in the
trial court,” this court is not limited to plain error review.
United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106
(9th Cir. 2009) (internal quotations and citation omitted); see
also Yijun Zhou, 838 F.3d at 1011. Whether § 3664(n)
applies to pretrial detention is a pure question of law, and the
United States, which has had an adequate opportunity to
12               UNITED STATES V. LILLARD

defend its interpretation below and on appeal, suffers no
prejudice.

                C. Interpretation of § 3664(n)

    “The interpretation of a statutory provision must begin
with the plain meaning of its language.” United States v.
Flores, 729 F.3d 910, 914 (9th Cir. 2013). To determine
plain meaning, “we examine not only the specific provision
at issue, but also the structure of the statute as a whole,
including its object and policy.” Children’s Hosp. & Health
Center v. Belshe, 188 F.3d 1090, 1096 (9th Cir. 1999). “If
the language has a plain meaning or is unambiguous, the
statutory interpretation inquiry ends there.” CVS Health
Corp. v. Vividus, LLC, 878 F.3d 703, 706 (9th Cir. 2017)
(citation omitted). If the statutory language lacks a plain
meaning, we may “employ other tools, such as legislative
history, to construe the meaning of ambiguous terms.” Benko
v. Quality Loan Service Corp., 789 F.3d 1111, 1118 (9th Cir.
2015). If a criminal statute remains ambiguous even “after
considering text, structure, history, and purpose,” the rule of
lenity obliges the court to select the least-harsh interpretation
consistent with the statutory language. Barber v. Thomas,
560 U.S. 474, 488 (2010).

    We hold that the language and statutory context of
§ 3664(n) favor Amicus’s view that § 3664(n) does not apply
to periods of pretrial detention, and that the rule of lenity
resolves any remaining ambiguity in Lillard’s favor.

      1. Language and Statutory Context of § 3664(n)

    The phrase “period of incarceration,” in isolation, “gives
rise to more than one reasonable interpretation.” Woods v.
                UNITED STATES V. LILLARD                   13

Carey, 722 F.3d 1177, 1181 (9th Cir. 2013) (quoting
DeGeorge v. U.S. Dist. Ct. for Cent. Dist. of Cal., 219 F.3d
930, 939 (9th Cir. 2000). Leading dictionaries define
“incarceration” broadly as “[t]he act or process of confining
someone; IMPRISONMENT,” and “a confining or state of
being confined: IMPRISONMENT.” Black’s Law Dictionary
(8th ed. 2004), Webster’s Third New Int’l Dictionary (2002).
So defined, “incarceration” encompasses not only
imprisonment following conviction, but other forms of
confinement, including administrative detention, immigration
detention, and pretrial detention. However, not all forms of
confinement are relevant to each statutory context.
Depending on a statute’s object and purpose, “incarceration”
may have a narrower meaning. See, e.g., 5 U.S.C.
§ 8148(b)(1)–(2) (making clear that “period of incarceration”
refers to incarceration “pursuant to . . . conviction of an
offense”).

    Thus, if a statute does not define “incarceration,” courts
must look to the statute as a whole to determine that term’s
meaning. See Mohamad v. Palestinian Auth., 566 U.S. 449,
454 (2012) (“[W]ords that can have more than one meaning
are given content . . . by their surroundings.”) (quoting
Whitman v. Am. Trucking Ass’ns Inc., 531 U.S. 457, 466
(2001); see also Mont v. United States, 139 S. Ct. 1826, 1829
(2019) (considering both “text and statutory context” when
interpreting the term “imprisonment” in 18 U.S.C. § 3624(e)).
In United States v. Latimer, for example, we had to decide
“whether confinement in a community treatment center
constitutes incarceration under the meaning of § 4A1.2(e)(1)
of the Sentencing Guidelines.” 991 F.2d 1509, 1510 (9th Cir.
1993). Because “the Guidelines do not define incarceration,”
we chose the interpretation that “best fits the Guidelines’
general structure and purpose,” and held that “confinement in
14               UNITED STATES V. LILLARD

a community treatment center does not constitute
incarceration under the meaning of § 4A1.2(e)(1).” Id.
at 1511, 1514.

    The “general structure and purpose” of the MVRA
support the conclusion that § 3664(n) refers only to
incarceration after a conviction. Id. at 1511. As noted above,
§ 3664, which is entitled “Procedure for issuance and
enforcement of order of restitution,” establishes procedures
for determining the amount of restitution that the district
court should impose at sentencing after a defendant’s
conviction. Section 3664 is structured around the stages of a
sentencing hearing. It establishes pre-hearing procedures,
§§ 3664(a)–(d), procedures governing the hearing and
imposition of the restitution order, §§ 3664(e)–(j), and
procedures concerning post-hearing alteration and
enforcement of the order, §§ 3664(k)–(n). All three stages
occur after a defendant has been convicted of a crime. Given
§ 3664’s focus on the period after conviction, it is most
natural to interpret “period of incarceration” in § 3664(n) as
referring to incarceration after a conviction.

    Section 3664(n)’s purpose supports this interpretation.
Both Amicus and the United States agree that § 3664(n)
creates a narrow exception for substantial resources received
“during a period of incarceration” because, during such a
period, defendants can rely on the Bureau of Prisons to
provide for their subsistence needs. This rationale does not
apply during periods of pretrial detention, which are often
brief or contingent. Resources that defendants receive during
pretrial detention, especially if that detention is for a short or
indeterminate amount of time, may be necessary for their
subsistence upon release.
                 UNITED STATES V. LILLARD                      15

    In sum, both the statutory context and purpose of
§ 3664(n) support the conclusion that the phrase “period of
incarceration” in § 3664(n) does not encompass pretrial
detention. These considerations are not so weighty, however,
that they render the government’s competing interpretation
clearly unreasonable. Nor does the legislative history of the
MVRA settle the matter. Where “a reasonable doubt persists
about a statute’s intended scope even after resort to ‘the
language and structure, legislative history, and motivating
policies’ of the statute[,]” courts may apply the rule of lenity.
Moskal v. United States, 498 U.S. 103, 108 (1990) (internal
citations omitted).

                    2. The Rule of Lenity

     The rule of lenity “demand[s] resolution of ambiguities in
criminal statutes in favor of the defendant . . . .” Hughey v.
United States, 495 U.S. 411, 422 (1990) (citation omitted).
The rule extends to statutes that set criminal punishments as
well as statutes that carry criminal penalties if violated. See
id. (applying the rule of lenity to a restitution provision of the
Victim and Witness Protection Act); United States v.
Thompson/Center Arms Co., 504 U.S. 505, 517–518, 518
n.10 (1992) (plurality opinion) (employing the rule of lenity
to interpret “a tax statute . . . in a civil setting” because the
statute “has criminal applications”); Leocal v. Ashcroft,
543 U.S. 1, 11 n.8 (2004).

   The rule of lenity applies to § 3664(n) of the MVRA for
two reasons. First, restitution is part of a defendant’s
punishment under the MVRA. See S. REP. 104-179, 20
(1996) (“The committee believes that restitution must be
considered a part of the criminal sentence, and that justice
cannot be considered served until full restitution is made.”).
16               UNITED STATES V. LILLARD

Section 3664(n) implements the restitution “part of the
sentence” in a harsher manner than § 3664(k) by requiring the
immediate discouragement of the full value of newly-
received substantial resources. Second, the MVRA provides
that failure to pay restitution carries criminal penalties.
18 U.S.C. § 3664(m)(1)(A). A defendant who is “required”
to turn over “substantial resources” received “during a period
of incarceration,” but fails to do so may be subject to
resentencing, a criminal fine, or a new prosecution. See
18 U.S.C. §§ 3614, 3613A, 3615. To ensure “fair warning”
of § 3664(n)’s scope, we must resolve ambiguities in
§ 3664(n) “in favor of the defendant.” United States v. Bass,
404 U.S. 336, 348(9th Cir. 1971).

    Applying the rule of lenity, we resolve any lingering
ambiguity in the phrase “period of incarceration” in Lillard’s
favor. Section 3664(n) does not apply to periods of pretrial
detention. We therefore reverse the district court’s August
3rd, 2016, order directing the seizure of Lillard’s $6,671.81.1

     REVERSED.




   1
     Appellant’s Motion to Take Judicial Notice [Dkt no. 17], filed
December 19, 2017, is GRANTED.
                    UNITED STATES V. LILLARD                            17

BENNETT, Circuit Judge, dissenting:

    Pretrial detention qualifies as “a period of incarceration”
under 18 U.S.C. § 3664(n), and because the statutory
language is unambiguous, the rule of lenity does not apply.
Thus, I would affirm the district court’s order directing that
the funds at issue be used to pay Lonnie Lillard’s outstanding
restitution obligations.1

                                     I.

    The issue before us is one of statutory
interpretation—whether pretrial detention qualifies as “a
period of incarceration” under § 3664(n).

    Because “[t]he preeminent canon of statutory
interpretation requires us to presume that the legislature says
in a statute what it means and means in a statute what it says
there[,] . . . our inquiry begins with the statutory text, and
ends there as well if the text is unambiguous.” BedRoc Ltd.,
LLC v. United States, 541 U.S. 176, 183 (2004) (internal
brackets, quotation marks, and citation omitted). “It is well
established that ‘when the statute’s language is plain, the sole
function of the courts—at least where the disposition required
by the text is not absurd—is to enforce it according to its
terms.’” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004)
(quoting Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000)). And we typically give
terms their ordinary meanings if they are not defined in the
statute. See FCC v. AT & T Inc., 562 U.S. 397, 403 (2011).



     1
       I agree with the majority that this case is not moot and that de novo
review applies.
18                 UNITED STATES V. LILLARD

    Here, the statute does not define “a period of
incarceration.” But since 1996 when § 3664(n) was enacted
as part of the Mandatory Victims Restitution Act (MVRA),
“incarcerate” has meant: “To shut up in prison; to put in
confinement; to imprison.” 7 Oxford English Dictionary 783
(2d ed. 1989); see also Black’s Law Dictionary 878 (10th ed.
2014) (defining “incarceration” as “[t]he act or process of
confining someone; imprisonment”). These broad definitions
encompass pretrial detention.

    A recent Supreme Court decision supports that
“incarceration” includes pretrial detention. In Mont v. United
States, 139 S. Ct. 1826 (2019), the Court found that the broad
definitions of “imprison,” one of which was “to incarcerate,”
encompass pretrial detention. Id. at 1832. Thus, it follows
that incarceration, being synonymous with imprisonment,
also includes pretrial detention. The Court in Mont also
observed that “[i]f Congress intended a narrower
interpretation, it could have easily used narrower language,”
and that the Court “cannot override Congress’ choice to
employ [a] more capacious phrase.” Id. at 1832–33. The
same is true here. If Congress intended for § 3664(n) to
apply only to post-conviction periods of detention, it could
have easily done so by, for example, adding the phrase “after
a conviction” or “following a conviction” immediately after
the phrase “during a period of incarceration.” But Congress
chose not to do so.2


     2
       The majority cites 5 U.S.C. § 8148(b)(1)–(2) to support its
argument. There, Congress used explicit language to limit the term
“period of incarceration” to post-conviction confinement. Thus,
§ 8148(b)(1)–(2) supports my view that if Congress wanted to limit
§ 3664(n) to periods of post-conviction confinement, it knew just how to
do so.
                 UNITED STATES V. LILLARD                     19

     The context in which “incarceration” is used also shows
that Congress intended § 3664(n) to be construed broadly.
The subsection reads: “If a person obligated to provide
restitution . . . receives substantial resources from any source
. . . during a period of incarceration, such person shall be
required to apply the value of such resources to any
restitution . . . still owed.” 18 U.S.C. § 3664(n) (emphasis
added). The broad language used throughout the subsection
reinforces that Congress intended this subsection to apply
broadly, and no language in the statute suggests that Congress
intended to limit it in the way that the majority believes it
should be limited.

    Finally, giving the term “incarceration” its ordinary
meaning does not lead to absurd results. A person in pretrial
detention does not need financial resources to support his
subsistence needs. Thus, when that person “receives
substantial resources . . . during a period of incarceration,”
§ 3664(n), those excess resources should be applied toward
his existing restitution obligations. This is reasonable and
consistent with the purpose of the MVRA, “to ensure that
victims of crime receive full restitution.” Dolan v. United
States, 560 U.S. 605, 612 (2010).

    Because § 3664(n)’s plain language encompasses periods
of pretrial detention, and such an interpretation does not
remotely lead to absurdity, I would enforce the statute as
Congress wrote it and hold that it applies to periods of pretrial
detention.

                               II.

   The majority errs by failing to give “incarceration” its full
and fair meaning. See Scalia & Garner, Reading Law: The
20                 UNITED STATES V. LILLARD

Interpretation of Legal Texts, 101 (2012) (“Without some
indication to the contrary, general words . . . are to be
accorded their full and fair scope. They are not to be
arbitrarily limited.”). Instead, the majority holds that the
statute is ambiguous because the term “incarceration” could
be construed more narrowly. But were that reasoning valid,
then a statute would always be ambiguous whenever
Congress used a broad term. That a statute contains a broad
term cannot automatically create ambiguity. See Arizona v.
Tohono O’odham Nation, 818 F.3d 549, 557 (9th Cir. 2016)
(“[A] word or phrase is not ambiguous just because it has a
broad general meaning under the [general words are to be
understood in a general sense] canon of statutory
construction.”).

    The majority also does not identify any absurdity that
would result from giving “incarceration” its full and fair
meaning. The majority suggests that applying § 3664(n) to
periods of pretrial detention might be unfair in some cases.
But Congress made that policy decision, and the fact that the
statute’s application might lead to seemingly unfair results
cannot override the statute’s plain meaning—the policy
choice is for the legislative branch of government, not the
judicial. See Guido v. Mount Lemmon Fire Dist., 859 F.3d
1168, 1175 (9th Cir. 2017) (“[I]t is not our role to choose
what we think is the best policy outcome and to override the
plain meaning of a statute[.]”).3




     3
      I note that the language in § 3664(n) does not require a person to
apply all of his resources toward his restitution obligations. It requires
only that a person apply “substantial resources” received “during a period
of incarceration.” 18 U.S.C. § 3664(n).
                 UNITED STATES V. LILLARD                     21

     Ignoring the plain language of the statute, the majority
holds that the structure of § 3664 shows that “incarceration”
does not encompass pretrial detention. But the majority’s
analysis is unconvincing because, logically, any statute
governing enforcing a restitution order necessarily applies
only after a conviction. What the statute’s structure does not
tell us is whether Congress intended § 3664(n) to apply to
persons in pretrial detention with existing restitution orders
(though, as noted, the statute’s unambiguous text does tell
us). Thus, I do not believe that the statute’s structure sheds
any light on whether Congress intended “incarceration” to be
limited in the way that the majority limits it (again, a
limitation that Congress could have chosen to actually
incorporate in the statute’s text).

     And I believe it is simply wrong to rely on the structure
of a statute, while ignoring its express language. “Reliance
on context and structure in statutory interpretation is a ‘subtle
business, calling for great wariness lest what professes to be
mere rendering becomes creation and attempted interpretation
of legislation becomes legislation itself.’” King v. Burwell,
135 S. Ct. 2480, 2495–96 (2015) (quoting Palmer v.
Massachusetts, 308 U.S. 79, 83 (1939)). Thus, “[c]ourts
should rarely depart from a statute’s clear meaning because
it risks creating a perception that they are inserting their own
policy preferences into a law.” Guido, 859 F.3d at 1174.

    Because § 3664(n) is not ambiguous, the rule of lenity
does not apply. See United States v. Overton, 573 F.3d 679,
693 (9th Cir. 2009) (“Where there is no statutory ambiguity
at the outset, ‘the rule of lenity simply has no application.’”
(quoting Albernaz v. United States, 450 U.S. 333, 343
(1981))).
22                 UNITED STATES V. LILLARD

                                  III.

    Adhering to the canons of statutory interpretation, I would
hold that pretrial detention qualifies as “a period of
incarceration” under § 3664(n). The majority reaches the
opposite result by erroneously creating an ambiguity that does
not exist. Thus, I respectfully dissent.4




    4
      I do not find Lillard’s remaining arguments challenging the district
court’s order persuasive.
