[ P UBLISH]

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.

________________________ Appeal s 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 C URIAM:

* The Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by designation. Case: 13-13567 Date Filed: 04/23/2015 Page: 1 of 82 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 A mended W rit of E xecution , 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

- fra u d conspiracy. On February 4, 2013, t he district judge entered final judgment against Peters, which included 14 4 months of imprisonment and restitution of $5,362 ,039.69. We affirmed h is 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 W rit of E xecution to levy on real property Peters owned : a home , located at 21065 Christopher Circle, So n ora, C alifornia 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 W ri t of E xecution on Peter s ’s real property

. On June 7, 2013 , the government filed an Amended A pplication for Writ of E xecution

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.

Case: 13-13567 Date Filed: 04/23/2015 Page: 2 of 83 and listed Peters’s apa rtment in San Mateo, California , as hi s last known address but failed to state the property to be seized and levied upon and its location

. Despite th is defect, a deputy clerk entere d 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 W rit of E xecution . 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. I n the Response , Smith clarified he did not represent Peters in th e W rit of E xecution proceeding ; he was filing the Response to assist Peters in notify ing the government of three facts : (1) Peters was incarcerated at the U nited S tates Prison Camp at Atwater, California ; further correspondence with him should be sent to him at his address there 2 ; (2) Peters request ed th e W rit of E xecution proceeding be transferred to the district
court with jurisdiction for Atwater, California ; and (3) Peters request ed a hearing on the Amended W rit of E xecution

.

2 Peters’s former, court

- appointed counsel stated in Peters’s R esponse that his address was:

“ Dale Peters, No. 68015

- 097, USP Atwater Camp Facility, P.O. Box 019001, Atwater, CA 95301. ” Case: 13-13567 Date Filed: 04/23/2015 Page: 3 of 84 On July 2 6 , 2013, t he 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
T his 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 Peter s ’s request for a transfer and hearing by a uthoriz ing the government to levy on hi s 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 appeale d h is 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). Case: 13-13567 Date Filed: 04/23/2015 Page: 4 of 85 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 restituti on ” in favor of the United States.’” Id. (quoting United States v. Bradley , 644 F.3d 1213, 1309 (11th Cir. 2011) (quoting 2 8 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 prepar e, and the clerk of court mu st 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.

Case: 13-13567 Date Filed: 04/23/2015 Page: 5 of 86 (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 t he 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 A pplication for a W rit of E xecution on June 6, 2013. The deputy clerk issued the W rit of E xecution the same day. The following day, the government amended its application for a W rit of E xecution , and the d eputy clerk entered an A mended W rit of E xecution

. On July 1, 2013, Peters filed

a R es ponse to the A mended W rit of E xecution , wherein he requested a hearing and transfer of the Amended W rit of E xecution proceeding to California , where he i s incarcerated . Peters also filed an affidavit attesting he did not receive notice of the

Case: 13-13567 Date Filed: 04/23/2015 Page: 6 of 87 W rit of Execution or the Ame nded W rit of Execution until June 26, 2013. 4 The government does not dispute the timeliness of Peters’s filing . W e find h is requests were timely under the circumstances we have stated . Th erefore , the issue is whether the district judge erred in refusing to transf er the Amended W rit of
E xecution 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 f a r distances to attend these hearings.” United States v. Nash , 175 F.3d 440, 443 (6th Cir. 1999). I n

cases where the convicted defendant is incarcerated , he is at the mercy of the court to make it possible for h im to attend a requested hearing. Because Peters requested

a transfer and a hearing , his Amended W rit of E xecution proceeding should have
been transferred to the district, where he reside s . Under the plain language of the
FDCPA , Peters’s request required the district judge to transfer his case to California, where he i s incarcerated

. Nash , 1 75 F.3d at 442 (“Because t he plain language of this statute is mandatory , the district court must grant such a transfer as long as [the request] is m ade in a timely manner. ”). The district judge erred in denying Peters’s request to transfer h is Amended W rit of E xecution 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

.

Case: 13-13567 Date Filed: 04/23/2015 Page: 7 of 88 The final order granting the government’s application for an A mended W rit of E xecution after Peters’s request for transfer is vacated ; the case is remanded to the district judge to ent e r an order transferring Peters’s Amended W rit of
E xecution proceeding to the California district court with jurisdiction for a hearing and decision

. VACATED AND REMANDED WITH INSTRUCTIONS . Case: 13-13567 Date Filed: 04/23/2015 Page: 8 of 8