# United States Court of Appeals

f or the Fifth Circuit

____________
No. 23

- 30005

____________ United States of America,

Plaintiff

— Appellee ,

versus

Sidney Joseph,

Defendant

— Appellant

.

______________________________ Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:99

- CR

- 238

- 1

______________________________
Before Richman , Chief Judge , and Graves , and Wilson , Circuit Judges

. James E. Graves Jr., Circuit Judge : Appellant Sidney Joseph appeals the district court’s order instructing the Bureau of Prisons to transfer funds from his inmate account to cover his restitution payments. We AFFIRM

. United States Court of Appeals Fifth Circuit 

### FILED May 20, 2024
Lyle W. Cayce ClerkNo. 23

- 30005

2 BACKGROUND

In 2001 Appellant was found guilty on multiple counts of bank robbery, carjacking, and various weapons charges. Appellant was sentenced to 462 months of imprisonment and a 5

- year term of supervised release and was ordered to make restitution payments to the two banks for a total of $24,025.00. Specifically, the sentencing district court ordered that: “[t] he payment of the restitution of $24,025.00 shall begin while the defendant is incarcerated. Upon release from imprisonment, any unpaid balance shall be paid at a rate of $400.00 per month. ” Appellant ’s conviction and sentence

were affirmed, and up and until the order at issue in this appeal, Appellant
ha d paid $2,772.03 in restitution leaving a balance of $21,252.97.

H owever, Appellant had accumulated $18,217.83 in hi s inmate trust account, and in 2022 the government moved for an order directing the Bureau of Prisons (“BOP”) to turn the money over to the clerk of court as payment towards his restitution liability. The district court appointed counsel who provided a res ponse , to which the government replied.
The district court granted the government ’ s motion and ordered that $17,817.83 be turned over for payment of restitution with $400 remaining in Appellant’s inmate trust account. This appeal resulted.

STANDARD OF R EVIEW
A district court’s statutory construction is reviewed de novo. United States v. Phillips , 303 F.3d 548 , 550 (5th Cir. 2002) ( citing Lara v. Cinemark USA, Inc. , 207 F.3d 783, 786 (5th Cir. 2000) ).

A “ district court ’ s decision to issue a turnover or der is reviewed for
abuse of discretion. ” United States v. Rand , 924 F.3d 140 , 142 (5th Cir. 2019) ( citin g Santibanez v. Wier McMahon & Co. , 105 F.3d 234, 239 (5th Cir. 1997 ) ).No. 23

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3 “ It may be reversed only if the court has acted in an unreasonable or arbitrary
manner.” Id. (citation omitted). A district court abuses its discretion “ if it bases its ruling on an erroneous view of the law or a clearly erroneous
assessment of the evidence

. ” Id. ( citing United States v. Clayton , 613 F.3d 592, 595 (5th Cir. 2010) ).

DISCUSSION
The district court granted the government’s request for a turnover order pursuant to 18 U.S.C. § 3613(c), 18 U.S.C. § 3556 , and the Mandatory
Victim Restitution Act (“MVRA”), 18 U.S.C. § 3663A. The MVRA provides that: “[a] n order of restitution under this section shall be issued and
enforced in accordance with section 3664

. ” 18 U.S.C. § 3663A(d). Section 3664 provides that “[a] n order of restitution may be enforced by the United States in the manner provided for in subchapter C of chapter 227 and subchapter B of chapter 229 of this title; or [] by all other available and
reasonable means.” 18 U.S.C. § 3664(m)(1)(A)(i), (ii). Subchapter B of chapter 229 includes 18 U.S. C. § 3613.
Section 3613(a), entitled “enforcement [ , ] ” provides that “[t] he United States may enforce a judgment imposing a fine in accordance with the practices and procedures for the enforcement of a civil judgment under
Federal law or State law.

. . [ and ] a judgment imposing a fine may be enforced against all property or rights to property of the person fined, except [for three exceptions].” 18 U.S.C. § 3613(a). Section (c) provides that a fine imposed pursuant to this title “is a lien in favor of the Uni ted States . . . as if the liability of the person fined were a liability for a tax assessed under the Internal
Revenue Code of 1986.” Id. § 3613(c). Accordingly, there is no dispute that
the United States had a lien on Appellant ’s property upon the ent ry of judgment in 2001.No. 23

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4 On appeal, Appellant argues that (1) according to the statute the lien had expired; (2) the district court’s order was not pursuant to any federal or state law; and (3) the district court was not entitled to seize all of Appellant’ s
wages. I. Statutory i nterpretation
Statutory interpretation always begins with the text of the statute.
United States v. Koutsostamatis , 956 F.3d 301 , 306 (5 th Cir. 2020) . The relevant statutory provisions of 18 U.S.C. § 3613 are below.

Subsection 361 3(b) is entitled “termination of liability” and states
that:
The liability to pay restitution shall terminate on the date that is the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of the person ordered to
pay restitution. In the event of the death of the person ordered to pay restitution, the individual ’ s estate will be held responsible for any unpaid balance of the restitution amount, and the lien provided in subsection I of this section shall continue until the estate receives a written release of that liability.

18 U.S.C. § 3613(b). Subsection (c) is entitled “lien” and states: “[t] he lien arises on the entry of judgment and continues for 20 years or until the liability is satisfied, remitted, set aside, or is terminated under subsection (b). ” 18
U.S.C. § 3613(c).
Appellant argues that the two subsections should be construed separately, specifically that § 3613(b) operates to terminate liability, and § 3613(c) operates to terminate the lien. Accordingly, un der his reading of subsection (c) , the lien on his property expire d upon the earlier of the two
dates . F or him, that is 20 years from the judgment date. He argues that the opposite interpretation would render “for 20 years or” superfluous. He goesNo. 23

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5 on to ar gue that if congress intended for it to be the later of the two requirements, that it would have in cluded those words just as it did in subsection 3613(b).

The text of the statute belies Appellant’s contention for multiple

reasons . First, both subsection s are under one section, that of 3613. Second, the title of subsection (b) specifically says “termination of liability ” while the title of subsection (c) does not, indicating that the two could be read as coterminous as to termination. Third, subsection (c) gives explicit reference to subsection (b). Th is is supported by the end of subsection (b) where it states: “the lien provided in subsection (c) of this section shall continue until the estate receives a written release of that liability.” 1 8 U.S.C. § 3613(b). Here, congress has used “lien” and “liability” interchangeably, giving us further indication that reading the two subsections together is the correct interpretation. Finally, this reading makes sense because

— to Appellant ’ s contention t hat congress could have specifically included “the later of” in subsection (c) for the two dates

— if the subsections are read together, there is no need for this inclusion; and second , if congress intended it to be the earlier of the two dates, it likewise could have so specified.
Further, if we were to agree with Appellant ’ s argument that
subsecti on (c) mandates that the lien expires on the earlier of the two dates,
that would result in a nonsensical outcome. See Atchison v. Collins , 288 F.3d
177, 181 (5th Cir. 2 002 ) (invoking the “common mandate of statutory construction to avoid absurd results”). Subsection 3613(b) provides that “in the event of the death of the person ordered to pay restitution, the individual’s estate will be held responsible for any un paid balance of the
restitution amount , and the lien provided in subsection (c) of this section shall continue until the estate receives a written release of that liability.” 18
U.S.C. § 3613(b). A dopt ing Appellant’s construction would result in a
nonsensi cal outcome because it would make no sense that if the person whoNo. 23

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6 owes restitution (debtor) dies , their estate would be held responsible for the unpaid balance of the restitution in accordance with the lien until they receive a written release, but if the debtor lives , he is released from the restitution requirement after 20 years. Accordingly, the district court did not err in finding that the lien had not terminate d, and in granting the turnover order.

II. F ederal or s tate l aw Appellant next argues that the district court’s order was not issued “in accordance with” any federal or state law as is required by § 3613(a). To recap, the MVRA authorizes an order of restitution to be enforced in a manner provided by § 3613 or “by all other available and reasonab le means.”
18 U.S.C. § 3664(m)(1)(A)(i), (ii). Section 3613 states that the “ United States may enforce a judgment imposing a fine in accordance with the practices and procedures for the enforcement of a civil judgment under
Federal law or State law. ” Appellant may be correct that § 3613(a) requires a federal or state enforcement statute, however § 3613(a) also authorizes enforcement “[n]otwithstanding any other [ f ] ederal law[.]” We have previously found this provision to override any conflicting sect ions or federal
laws. “ This court has interpreted this ‘ notwithstanding ’ clause as signal[ing] a clear Congressional intent to override conflicting federal law.” United
States v. Elashi , 789 F.3d 547 , 552 (5th Cir. 2015) (citation omitted). Cf.
Cisneros v. Alpine Ridge Grp. , 508 U.S. 10, 18 (1993) ( “[T]he use of such a ‘notwithstanding’ clause clearly signals the drafter ’ s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.” ). Further, even as suming the district court did not have sole authority under § 3613(a), the MVRA provides for enforcement “ by all
other available and reasonable means

. ” The district court could have reasonably read this provision to include a court order. Accordingly, the
district court did not base “its ruling on an erroneous view of the law .” Rand , 924 F.3d at 142. Hence, there was no abuse of discretion.No. 23

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7 III. Garnishment of w ages Finally, for the first time on appeal, Appellant argues that the district

court erred by not limiting the turnover order in accordance with the exception(s) in § 3613(a). However, Appellant has forfeited this argument by raising it for the first time on appeal. Rollins v. Home Depot USA , 8 F.4th 393 , 397 (5th Cir. 2021)

. (“ A party for feits an argument by failing to raise it in the
first instance in the district court

— thus raising it for the first time on appeal

— or by failing to adequately brief the argument on appeal. ”). “ As we have held, if a litigant desires to preserve an argument f or appeal, the litigant must press and not merely intimate the argument during the proceedings before the district court. If an argument is not raised to such a degree that the district court has an opportunity to rule on it, we will not address it on

appe al. ” F.D.I.C. v. Mijalis , 15 F.3d 1314 , 1327 (5th Cir. 1994)

. See Thomas v.
Abebe , 833 F. App ’ x 551 , 555 (5th Cir. 2020) ( o n appeal from a motion to
dismiss ). For the first time on appeal, Thomas raised a new argument that defendants had been properly serv ed , and accordingly, the district court
should have entered a default judgment against those defendants. Our court held that (1) Thomas never filed proof of service, and (2) that in any case,
Thomas failed to raise his issues with the court below and his a rguments were thus waived. The court came to this conclusion even where the appellees did not argue forfeit ure in their brief. 1 See also Leverette v. Louisville Ladder Co. , 183 F.3d 339, 342 (5th Cir. 1999)

. Leverette appealed the district court’s order granting judgment as a matter of law (“JMOL”) to the Appellee, contending, for the first time on appeal, that our court should apply a risk

utility analysis to determine if the product was defective. Even where the

_____________________

1 The Appellees argued only that Thomas had not preserved his issues for appeal because there was no cita tion to the record and no discussion or explanation of the case law cited , not that Thomas failed to raise the issue in the district court.No. 23

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8 Appellee did not argue forfeiture, our court held that we “will not allow a party to raise an issue for the first time on appeal merely because a party believes that he might prevail if given the opportunity to try a case again on a new theory.” Id.
Although these cases arise from a motion to dismiss and a JMOL motion after a trial, the underlying premise of forfeiture aptly applies. Appellant asks us to consider their new argument that the Consumer
Protection Credit Act exception in § 3613(a) is suff icient to overturn the district court’s order. Our court “cannot allow a party to raise an issue for the first time on appeal ” merely because they believe that they may prevail on a new theory never raised before the district court

. Leverette , 183 F.3d at

342

. “ If an argument is not raised to such a degree that the district court has an opportunity to rule on it, we will not address it on appeal.” F.D.I.C. v. Mijalis , 15 F.3d at 1327

. See also Davidson v. Fairchild Controls Corp. , 882 F.3d 180, 185 (5th Cir . 2018) (finding that a party waives an argument when they fail to argue or brief it to the district court and statements made at high levels of generality do not sufficiently preserve the argument for decision)

. Appellant’s argument is forfeited.

CONCLUSION

We AFFIRM the district court.