1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,

v. DAVID VILLONGCO, Defendant. Criminal Case No. 07-009 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION The defendant David Vil longco, who is proceeding pro se , contests the government’s effort to garnish funds in his reti rement and brokerage account s in partial satisfaction of the defendant’s restitution oblig ation in the amount of $14,284,852 .78. Def.’s Mot. to Quash the Writ of Continuing Non-Wage Gar nishment, ECF No. 46 (“Def.’s Mo t.”). 1 This restitution obligation was ordered as part of a criminal judgment entered a gainst the defendant over eight years ago, with directions that the restitution be paid in monthly installments, with which payment schedule the defendant has fully complied. Id. at 1. Nevertheless, the government now seeks to garnish from the garnis hee, Fidelity Investments, four of the defendant’s accounts containing approximately $806,536.52, as “non-exempt disposable earnings in which the Defendant has a substantial non-e xempt interest.” Appl. for Wr it of Continuing Non-Wage Garnishment (“Gov’t’s Appl. f or Writ”), at 1, ECF No. 40; Answe r of Garnishee (“Answer”), ¶¶

1 After this case was reassigned, on March 24, 2016, to the undersigned Chief Judge, the defendan t submitted a letter, dated April 19, 2016, which the Court construed as a motion to qua sh the government’s garnishment writ. See Min. Order (May 5, 2016). In response to the Court’s Order, the defendant’s former counsel confirmed, on May 6 and 7, 2016, that they no longer represent the defenda nt. See Notice of Nonre presentation as to David Villongco by Thomas Simeone, ECF No. 47; Notice of Nonrepresentation as to David Vi llongco by Steven Gruel, ECF No. 48.2 7, 9, ECF No. 42; Supplemental Answer of the Garnishee (“Suppl. Answer”), at 2, ECF No. 43. For the reasons discussed below , the defendant’s motion to quas h is granted.
I. BACKGROUND Summarized below is the relevan t factual and procedural backgro und of this case. The Presentence Investig ation Report (“PSR”) prepared by the United States Probation Office (“USPO”) in connection with the d efendant’s sentencing describe d the defendant’s “Financial Condition: Ability to Pay” and disclosed that the defendant hel d, inter alia , the following assets: (1) “a 401K retirement savings a ccount with Fidelity Investment s” that “was established from his former employment with V isa” and, as of January 28, 2008, had abalance of $376,003.14, see PSR ¶¶ 64, 64a, ECF No. 51; (2) “anot her 401K with General Elec tric (GE), from his former employment with this company,” which, “[a]s of December 2007, h e believes . . . had a total asset value of $120,000,” id. ¶ 64; and (3) “[a]s of December 2007,” GE and Prudential stock with a value of $6,134.00, id. ¶ 65. 2 After noting that the defenda nt must be ordered to pay “full restitution to the victim without consideration of the economic circumstances of the defendant,”
id. ¶ 96 (citing 18 U.S.C. §§ 3663A(a)(1), (3)), the PSR advised t hat “[t]he Court may order the defendant to make nominal periodi c payments if the Court finds from facts on the record that the economic circumstances of the defendant do not allow the paymen t of any amount of [] restitution, . . . in the foreseeable future under any reasonab le schedule of payments,” id. (quoting 18 U.S.C. § 3664(f)(3)(B)).

2 To facilitate consideration of t he defendant’s motion to quas h, the Court directed t he USPO to file, under seal, the PSR and the USPO’s Sentencing Recommendation, which w ere docketed on June 8 and 30, 2016, at ECF Nos. 51 and 53, respectively. P rior to his sentencing, the def endant acknowledged, on Feb ruary 29, 2008 , receipt of the PSR. Def.’s Receipt and Ackno wledgement of PSR, ECF No. 35 . In order for the Court’s reasoning to be fully discussed here, portions of the PSR and Sentencing Recommendati on quoted herein are uns ealed, while the full documents remain sealed. See United States v. Reeves , 586 F.3d 20, 22 n.1 (D.C. Cir . 2009) (unsealing the PSR “to the limited extent referenced in [the] opinion,” but maintainin g that “the full document shall remain physically withheld from public review”) (citing United States v. Parnell , 524 F.3d 166, 167 n.1 (2d Cir. 2008) (per curiam)).3 At the sentencing hearing, in a ddition to concurrent terms of i mprisonment and supervised release on each of t wo counts of conviction, the def endant was ordered to “pay restitution totaling $14,284,652.78 joi ntly and severally with [his] accomplices, with credit to [him] for amounts already paid.” T r. of Sentencing Hr’g at 28: 8–11, (Feb. 29, 2008), ECF No.
52. 3 The Court also issued instructi ons regarding the timing and m anner of the restitution payments, ordering, first, that “[ t]he special assessment and r estitution are immediately payable to the clerk of this court,” a nd, second, that as a special con dition of supervised release, the defendant “must pay the balance of any restitutio n owed at a ra te of no less than $500 each month and provide verification of t hat payment to the probationoffice.” Id. at 28:16–17, 29:12–
14. 4 Apparently confused by the seemi ngly contrary directions about when restitution payments became due—either “immediately” or in installments whi le on supervised release—, defense counsel raised the que stion of when payments on the res titution obligation would begin, asking, “does that begin upon rel ease from custody and is a con dition of his supervised release or does that begin now?” Id. at 31:16–17. The Court responded: “ No, the order I just enter ed required the beginning -- require d the payment due immediately. You will certainly probably

3 The PSR indicates that other individuals were involved and in dicted in connection with the criminal conduct underlying the defendant’s convictions. See PSR ¶ 18. The D.C. Circuit rec ognizes that joint and several liability for restitution obligations may be appropriate, at le ast “where there is more tha n one defendant and each has contributed to the victim’s injury.” United States v. Monzel , 641 F.3d 528, 538 (D.C. Cir. 2011); see also United States v. Cano-Flores , 796 F.3d 83, 95 (D.C. Cir. 2015) (holding that “joint and sev eral liability” does not extend to criminal forfeiture but “might well apply to restitution in a c riminal case,” under 18 U.S .C. § 3664(h), “as a means of protecting victims”); cf . 13 Administrative Office of the United States Courts, Guide t o Judiciary Policy, Finance and Budget, Chapter 8, § 820.20.2 0 (Setting up Joint and Severa l Restitution Accounts) ( “Joint and several restitution should not be ordered against individuals who are n ot before the court or included in the same indictment.”). 4 The USPO’s Sentencing Recommendation, in an attached document titled “Sentencing Format,” recommended a monthly restituti on payment that was double the m onthly amount imposed by the Court. See Sentencing Recommendation at 25, ECF No. 53. The “Sentencing F ormat” also reflected the language employed by the Court, recommending that “[t ]he special assessment and rest itution are immediately payable to the Clerk of the Court for the U.S. Dis trict Court, Distric t of Columbia” and th at the “Restitution Obligation” payment schedule be imposed as one of the “special conditions” of supervision. Id.4 need to work through with others ho w and -- how much to pay, wh en it starts, but certainly during the period of incarcerati on, payments will have to come through the Inmate Financial Responsibility Program. It’s under standable that there may end up being some limits on how much that can be during that period of time, but the payments f or the restituti on as well as the special assessments are due and payable immediately.” Id. at 31:18–32:1. The Court continued, “[t]he fact is that, you know, paym ent schedules end up getting worked out when people don’t have the full amount of all that ’s due and payable immediately. ” Id. at 32:3–5. The Judgment and Commitment Order, entered on March 14, 2008, g enerally reflects the sentence imposed at the earlier hearing: the defendant was sent enced to concurrent terms of thirty-three months of imprisonm ent and three-year terms of sup ervised release on each of two counts, to which he pleaded guilt y, of conspiracy to defraud th e Government and mail fraud, in violation of 18 U.S.C. §§ 286 and 1341, 1342. Judgment and Com mitment Order, (“J & C”) at 1, ECF No. 33. The order di rected the defendant, inter alia , to pay “[r]estitution totaling $14,284,652.78 to be paid jointly and s everally with your accomplices with credit to the defendant for amount already pai d,” and to “pay the balance of any restitution owed at a rate of no less than $500.00 each month a nd provide verification of sam e to the Probation Office.” J &
C at 5–6. 5 The order further required a s “a condition of supervised rele ase that the defendant pay [a fine or restitution] in accordance with the Schedule of Paym ents sheet of this judgment,” id . at 3, and that the defendant “notify t he court and United States a ttorney of material changes in

5 The order imposed additional financial penalties, including p ayment of a $200.00 special assessment and “forfeit[ure of] $150,000 as ordered in the March 16, 2007 Cons ent Order of Forfeiture.” J & C at 4; see Consent Order of Forfeiture, ECF No. 6. The section of the judgment pr oviding for “Criminal Monetary Penalties,” including restitution, states that “[t]he defendant must pay th e total criminal monetary p enalties under the schedule of payments on Sheet 6,” J & C at 6, and, although “Sheet 6” is not in the record, “Sheet 5A” titled “Additional Terms for Criminal Monetary Pen alties” reflects the total amoun t of restitution and payment schedule orally ordered by the Court at the sentencing hearing.5 economic circumstances,” id . at 1. 6 Neither party objected to or appealed the sentence. See generally Tr. of Sentencing Hr’g. Almost eight years later, on M arch 4, 2016, the government file d an Application for Writ of Continuing Non-Wage Garnishme nt to Fidelity Investments as t o David Villongco, see Gov’t’s Appl. for Writ, to whic h the garnishee, Fidelity Invest ments, filed an answer, see Answer at 1. The garnishee expl ained that the defendant “is a terminated participant in the General Electric Retirement Sa vings Plan,” in which “the [d]efe ndant has an account balance of $186,456.02 as of March 15, 2016.” Answer ¶¶ 7, 9. Further, t he defendant “is a retired participant in the Visa 401(k) Plan,” in which “the [d]efendanthas an account balance of $405,264[.]23 as of March 15, 2016.” Id. The garnishee subsequently supplemented this information identifying two additional accounts of the defendan t: a UC Individual Brokerage Account in the amount of $2,764.56, a nd a Rollover Individual R etirement Account of the defendant in the amount of $212,051.71. Suppl. Answer at 2. Pending before the Court is the de fendant’s request that the Co urt “rescind this collection effort or procedure.” Def.’s Mot. at 1. The defendant states that he has “been diligently paying [the amount of $500.00 each month] ever since [he] was released .” Id. To demonstrate this compliance, he attached the las t three months of restitution pa yments. See Def.’s Mot., Ex. 1 (“Financial Docs.”), ECF N o. 46-1. While not disputing the def endant’s full compliance with the restitution payment schedul e both during and after his now expired supervised release term, the government opposes this motion. Gov’t’s Mem. Opp’n Def.’s Mot. to Quash Writ of Garnishment (“Gov’t’s Opp’n”), ECF No. 49; see Min. Order (May 9, 2016) (setting briefing

6 The latter notice requirement r egarding material economic cha nges was not stated orally at the sentencing hearing, but a district court ma y use a written judgment to cla rify implementation of a sentencing order. See United States v. Knight , No. 14-3010, 2016 U.S. App. LEXIS 10516, at *12 (D.C. Cir. Ju ne 10, 2016).6 schedule and directing governme nt to address inits opposition: United States v. Hughes , 813 F.3d 1007 (D.C. Cir. 2016); United States v. Martinez , 812 F.3d 1200 (10th Cir. 2015); and United States v. Ekong , 518 F.3d 285 (5th Cir. 2007)).
II. DISCUSSION To satisfy part of the remaining $13,975,907.08 owed on the ori ginal $14,284,652.78 restitution order against the de fendant, Gov’t’s Appl. For Writ at 1, the government seeks to garnish the defendant’s Fidelity Investments retirement and bro kerage accounts, worth approximately $806,536.52. The defendant requests that the garnishment be stopped for the straightforward reason that he i s in full compliance with the c ourt-ordered restitution payment schedule. Def.’s Mot. at 1. Esse ntially, the defendant’s posi tion is that, absent any delinquency or default in the restituti on payments of $500.00 per month, th e government is not entitled to accelerate these payments by garnishing funds in the targeted s avings accounts. The government’s arguments supporting the garnishment and opposing the motion to quash are analyzed after a review of the statutory framework.
A. STATUTORY FRAMEWORK “Federal courts have authority t o order restitution solely purs uant to statute.” United
States v. Anderson , 545 F.3d 1072, 1077 (D.C. Cir. 2008) (citing United States v. Bok , 156 F.3d 157, 166 (2d Cir. 1998)); see also United States v. Gottesman , 122 F.3d 150, 151 (2d Cir. 1997) (“‘Federal courts have no inherent power to order restitution. Such authority must be conferred by Congress through statute.’” (quoting United States v. Helmsley , 941 F.2d 71, 101 (2d Cir. 1991))). In fact, there is a “‘specific and detailed [statutor y] scheme addressing the issuance . . . of restitution orders arising out of criminal prosecution.’” Martinez , 812 F.3d at 1204 (quoting United States v. Wyss , 744 F.3d 1214, 1217 (10th Cir. 2014)).7 The two principle restitution sta tutes applicable to defendants convicted of federal crimes are the Victim Witness Prot ection Act of 1982 (“VWPA”), 18 U.S. C. § 3663, and the Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. §§ 3663A, 3 664. These two statutes share a number of parallel provis ions, with the primary distinc tions being that the VWPA “provides federal courts with di scretionary authority to order restitution to victims of most federal crimes,” while the MVRA “requires restitution in certai n federal cases involving a subset of the crimes covered by the [VWPA]. (Recall that under the 19 82 Act, restitution is discretionary, not mandatory).” United States v. Papagno , 639 F.3d 1093, 1096 (D.C. Cir. 2011). In addition, unlike the VWPA, the MVRA “requires the co urt to award full restitution regardless of the defendant’s f inancial circumstances, . . . ; and gives victims a role in the sentencing process.” United States v. Monzel , 641 F.3d 528, 543 (D.C. Cir. 2011) (citing 18 U.S.C. §§ 3664(d)(2), (f)(1)(A)). 7 Set forth below are the releva nt provisions of the MVRA and the enforcement provisions applicable here.
1. The Mandatory Victims Restitution Act of 1996 As noted, the MVRA mandates that a defendant convicted of certa in enumerated offenses, “including any offe nse committed by fraud or deceit,” be ordered to “make restitution to the victim of the offe nse . . . .” 18 U.S.C. §§ 3663A(a)(1) , (c)(1)(A)(ii). The defendant’s convictions in this case, conspi racy to defraud the government and mail fraud in violation of 18 U.S.C. §§ 286, 1341, and 1342, are indisput ably subject to the MVRA. Under the MVRA, the court must: “(a) order the full amount of restitution; (b) establish an initial paym ent schedule that

7 As the D.C. Circuit outlined in Papagno , “several other statutes autho rize restitution for specific of fenses.” 639 F.3d at 1097 n.1 (citing 18 U .S.C. § 43(c) (damaging or int erfering with an enterpris e involving animals); 18 U.S.C. § 228(d) (child support violations); 18 U.S.C. § 1593 (p eonage, slavery, and trafficking in persons); 18 U.S.C. § 2248 (sex crimes); 18 U.S.C. § 2259 (sexual exploitati on of children); 18 U.S.C. § 2264 (domestic violence); 18 U.S.C. § 2327 (telemarketing fraud); 21 U.S.C. § 853(q) (amphetamine and methamphetamine offenses)).8 takes into consideration the de fendant’s financial situation; a nd (c) respond to any change in the defendant’s economic condition by adjusting the schedule.” United States v. Scales , No. 14- 10725, 2016 U.S. App. LEXIS 5179, at *14 (5th Cir. Mar. 17, 201 6). In computing the amount of r estitution to be paid by the defend ant, the MVRA requires that restitution be ordered for “each victim in the full amount of each victim’s losses as determined by the court and without consideration of the econom ic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A); see also 18 U.S.C. § 3663A(b) (p roviding guidance on calculating amount of loss). The M VRA next requires the court to “specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid,” upon consideration of certain factor s, such as “the financial r esources and other assets of the defendant,” “projected earnings and other income of the defenda nt,” and “any financial obligations to dependents.” 18 U.S.C. § 3664(f)(2). Thus, the statute require s two distinct inquiries: first, the court must ascertain and or der the total amount of restitution no matter the defendant’s financial situatio n; and, second, the court must di rect the defendant to satisfy the restitution obligation i n a particular manner, a direction pred icated upon an evaluation of the defendant’s particular financia l circumstances. While the MVRA thereby cabins judicial discretion in setting the amount of restitution to be paid by a defendant, the statute authorizes broader flexibility in “fashioni ng” how the defendant is requir ed to pay that restitution amount.
See Paroline v. United States , 134 S. Ct. 1710, 1729 (2014) (“District courts routinely exer cise wide discretion both in sentencing as a general matter and more specifically in fashioning restitution orders.”). Notably, the MVRA contemplates a variety of payment schedules, authorizing the court to “direct the defendant to make a single, lump-sum payment, pa rtial payments at specified9 intervals, in-kind payments, or acombination of payments at sp ecified intervals and in-kind payments.” 18 U.S.C. § 3664(f)(3)( A). As Justice Sotomayor re cently observed, “in choosing between lump-sum and partial paym ents, courts ‘shall’ consider ‘the financial resources and other assets of the defendant,’ along with ‘any financial oblig ations of the defendant, including obligations to dependents.’” Paroline , 134 S. Ct. at 1742 (Sotomayor, J., dissenting) (quoting 18 U.S.C. §§ 3664(f)(2)(A), (C)). When installment payments are o rdered, “the installments shall be in equal monthly payments over the period provide d by the court, unless the cour t establishes another schedule,” and the length of time for schedul ed payments “shall be the sho rtest time in which full payment can reasonably be made.” 18 U .S.C. §§ 3572(d)(1)–(2). The def endant’s obligation to make restitution payments continues fo r up to twenty y ears after rel ease from imprisonment or until his death, whichever occurs f irst. 18 U.S.C. §§ 3613(b), (f); see also United States v. Pickett , 505 F. App’x 838, 841 (11th Cir. 2013) (finding restitution judgment e ntered in 1997 “remains enforceable until 2019,” since defendant “was released from pri son in 1999”); United States v. Dabney , No. 3:02-CR-00068, 2009 U.S. Dist. LEXIS 94303, at *4–5 (W.D. Ky. Oct. 8, 2009) (noting that “defendant’s liab ility to pay restitution extends until 20 years after release from imprisonment or upon the death of t he defendant” and, thus, “[d ]espite the fact that Defendant is no longer under supervised releas e, he is still obligated to ma ke restitution payments”). Absent a payment schedule, the full amount of restitution is du e immediately at the time of sentencing. 18 U.S.C. § 3664(f)(2 ) (directing that the mann er in which restitution is to be paid is “pursuant to sec tion 3572[(d)(1)],” which, in turn, provides that a person or dered to pay a “monetary penalty, including restitution, shall make such payme nt immediately, unless, in the interest of justice, the court provides for payment on a date c ertain or in installments”); see also10 United States v. Carter , 742 F.3d 440, 444–45 (9th Cir. 2014) (“The practical effect o f omitting restitution from the conditions of s upervised release is that r estitution was due immediately upon [the defendant’s] sentenci ng, pursuant to 18 U.S.C. § 3572(d)(1 ).”). In addition to providing guidance on calculating the amount and manner of payment of a restitution order at th e time of sentencing, the MVRA enumerate s the circumstances when this order “can” be “corrected,” “am ended,” “modified,” or “adjusted .” 18 U.S.C. § 3664(o); 8 see Wyss , 744 F.3d at 1217–19 (reversing dist rict court’s reduction in amount of restitution owed by defendant upon concluding that ma ndatory order of restitution u nder MVRA may not be altered “absent a showing of one of the § 3664(o)(1)-(2) factors”). On e circumstance in which the restitution order may be adjuste d post-sentencing occurs when t he court is notified “of a material change in the defendant’s ec onomic circumstances.” 18 U.S.C. § 3664(k); see also 18 U.S.C. § 3572(d)(3) (directing that any judgment for a fine permitting i nstallment payments must also require the defendant to “notif y the court of any material chan ge in the defendant’s economic circumstances that might affect the defendant’s ability to pay the fine,” which notice may trigger, upon motion of the court or any part y, “adjust[ment] of the pay ment schedule, or require immediate payment in full, as th e interests of j ustice require” ). The original r estitution order must require the defendant to gi ve notice of any material chang e in economic circumstances to both the court and the Attorne y General, and such notice may al so be submitted by the United States or a victim. 18 U.S.C. § 3664(k). The MVRA further req uires a defendant, who enjoys improved economic circumstances post-sentencing and “during a p eriod of incarceration,” to

8 18 U.S.C. § 3664(o) provides that a restitution order “[1] can subsequently be (A) co rrected under Rule 35 of the Federal Rules of Criminal Procedure and section 3742 of chapter 235 of this title; (B) appealed and modified under section 3742; (C) amended under subsection (d)(5); or (D) adjusted under section 3664(k), 3572, or 3613A; or [2] the defendant may be resentenced under section 3565 or 3614 .”11 apply to the restituti on obligation the value of “substantial r esources” received “from any source, including inheritance, settl ement, or other judgment.” Id. § 3664(n). Generally, a fine or restituti on payment becomes delinquent if payment is late more than thirty days, id. § 3572(h), and is in default if paym ent is delinquent for more than ninety days, id. § 3572(i). The penalties for defaulting on a criminal fine or restitution payment can be severe, including (1) “[n]otwithstanding any installment schedule,” “th e entire amount of the fine or restitution is due with in 30 days after notification of the def ault,” id. ; (2) resentencing “to any sentence which might originall y have been imposed,” if the nonp ayment is knowing, id. § 3614(a); (3) revocation or modi fication of the terms or conditi ons of supervised release or probation, id. § 3613A(a)(1); (4) adjustment of the payment schedule, id. ; and (5) contempt, id. Indeed, when compliance with a s chedule of restitution payments is made a special condition of supervised release, revocation of supervised release has been d escribed as a “potent option” to enforce the restitution obligation. Scales , 2016 U.S. App. LEXIS 5179, at *19; see also United States v. Wiley , No. 14-11213, 2016 U.S. App. LEXIS 4418, at *10 (5th Cir. Mar . 7, 2016) (“[A]ny delay in paying restituti on only violates [the defendan t’s] terms of supervised release if she fails to comply with the payment schedule prescribed by the district court.”).
2. Garnishment Under the MVRA and the Federal Debt Collection Procedures Act The MVRA grants the United State s broad authorit y to enforce re stitution orders as set out “in subchapter C of C hapter 227 [18 U.S.C. §§ 3571–74] and subchapter B of chapter 229 [18 U.S.C. §§ 3611–15] of this title ” and “by all other availab le and reasonable means.” 18 U.S.C. §§ 3664(m)(1)(A)(i)–(ii). S pecifically, “[t]he United S tates 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,” id. § 3613(a), which authority e xpressly applies to12 “the enforcement of an o rder of restitution,” id. § 3613(f). The Federal Debt Collection Procedures Act (“FDCPA”), 28 U.S.C. §§ 3001, et seq ., in turn, provides the “exclusive civil procedures for the United State s” to enforce “a judgment on a d ebt.” 9 28 U.S.C. § 3001(a)(1). The FDCPA authorizes a court , upon application by the governmen t, to “issue a writ of garnishment against property ( including nonexempt disposable earnings) in which the debtor has a substantial nonexempt interest and which is in the possession , custody, or control of a person other than the debtor, in order to satisfy the judgment against the debtor.” Id. § 3205(a). The government must then serve the w rit of garnishment on the garni shee and judgment debtor. Id. § 3205(c)(3). The garnishee must f ile an answer with the court a nd serve a copy of that answer on the judgment debtor. Id. § 3205(c)(4). Written objections to the garnishee’s answer an d a request for a hearing asserte d by either the judgment debtor or the government must be filed “[w]ithin 20 days after receipt of the answer.” Id. § 3205(c)(5). “After the garnishee files an answer and if no hearing is reque sted within the required time period, the court shall promptly enter an order directing the garnishee as to the disposition of the judgment debtor’s nonexempt interest in such property.” Id. § 3205(c)(7). Garnishment is terminated, inter alia , by “a court order quashing the writ of garnishment.” Id. § 3205(c)(10).
B. ANALYSIS The government seeks to garnish f rom the defendant a significan tly greater portion of his restitution obligation t han is authorized by the court-ordered payment schedule imposed as part of the restitution order at the time of sentencing. The government urges that the restitution order

9 Additionally, the MVRA provides that a victim, including the federal government when named as the victim in the restitution order, see United States v. James , 312 F. Supp. 2d 802, 806–07 (E.D. Va. 2004), may seek to enforce a restitution order by converting that order into anabstract of judgment, which “shall be a lien on the property of the defendant . . . in the same manner and to the s ame extent and under the same conditions as a judgment of a court of general j urisdiction in that State,” 18 U.S.C. § 3664(m)(1)(B).13 be construed so as to avoid “a substantial limitation on the Un ited States’ ability to collect because of minimum monthly payments imposed.” Gov’t’s Opp’n at4. 10 As support, the government proffers an interpret ation of language used in the r estitution order that is both contrary to binding prece dent in this Circuit and otherwise not persuasive. The government focuses first on t he restitution order’s require ment for the defendant to “pay the balance of any restitution owed at a rate of no less t han $500 each month.” J & C at 6. According to the government, this language merely establishes aschedule of minimum monthly payments and does not obviate the defendant’s liability “for th e full amount of restitution” under the MVRA. Gov’t’s Opp’n at 1–2. Citing the purpose of the MVR A to “encourage[e] more aggressive collection and enfor cement of restitution orders on behalf of victims,” id. at 4, the government argues that interpret ing the payment schedule as set ting a cap on the amount the government may recover at any one t ime from the defendant “woul d lead to an unreasonable and illogical reading” of the MVRA, id. Instead, bolstered by the oral language used at sentencing that “restitution [is] immediately payable,” Tr. Sentencing Hr’ g at 28:16–17, the government would treat the court-imposed paym ent schedule as mere guidance to the defendant, rather than any restriction on the government’s authority to collect the to tal amount of restitution owed using any mechanism provided under the FD CPA. Thus, critical to the defendant’s motion to quash the government’s writ of garnishm ent is the proper constructionof the restitution order, which

10 In passing, the government notes that the defendant’s motion to quash “appears to b e untimely.” Gov’t’s Opp’n at 1. The govern ment does not dispute, however, that the defendant was served by the U.S. Marshal with the Notice of Continuing Non-Wage Garnishment on April 5, 2016, id. n.1, and appears to have responded fairly promptly by sending a letter opposing the garnishment action tw o weeks later, on April 19, 2016, s ee Def.’s Mot. at 1. Even if the defendant’s le tter was not technically filed wi thin the statutorily prescribed time period, given the defendant’s pro se status, any brief delay beyond the statutory filing period is excused. See Sebelius v. Auburn Reg’l Med. Ctr. , 133 S. Ct. 817, 824–25 (2013) (finding that Congress must “sp eak clearly” for a rule to be jurisdictional, and “absent such a clear statem ent . . . courts should treat th e restriction as nonjurisdictional in character”); Henderson v. Shinseki , 562 U.S. 428, 433, 435 (2011) (“Filing deadlines, such as the 120-day filing deadline at issue here, are quintessential claim-processing rules,” failure to co mply with which may “be exc used based on equitable factors, or on the opposing party’s forfeiture or waiver of any objection to the late filing.”).14 requires that the restitution be paid both “immediately,” Tr. S entencing Hr’g at 28:16–17, and “at a rate of no less than $500 each month,” J & C at 6; Tr. Senten cing Hr’g at 29:12–13. The government’s singular focus on the over-arching purpose of the MVRA “to make victims of crime whole, to fully c ompensate these victims for t heir losses and to restore these victims to their original state of well-being,” United States v. Boccagna , 450 F.3d 107, 115 (2d Cir. 2006), leads to its interpret ation that “no twithstanding t he monthly payments,” the restitution order is “enforceable” through this garnishment act ion. Gov’t’s Opp’n at 3. Consistent with this reasoning, ot her federal district courts h ave relied upon the pr ovisions of the MVRA providing for aggressive enf orcement of restitution orders , under 18 U.S.C. §§ 3613(a) and 3664(m), to conclude that, des pite a court-imposed payment schedule, the government may collect the full amount of r estitution at any time. See, e.g. , United States v. Otter , No. 2:09cr25, 2011 U.S. Dist. LEXIS 52518, at *4 (W.D.N.C. May 16, 2011) (not ing that restitution payment schedule “‘does not mean that the Government is precluded from pursuing other avenues of ensuring that defendant’s rest itution obligation is satisfied. Court-imposed payment schedules are merely one means available to enforce a restitution judgmen t.’” (quoting United States v.
James , 312 F. Supp. 2d 802, 807 (E.D. Va. 2004)); United States v. Bancroft , No. 1:09-cr-101- 02, 2010 U.S. Dist. LEXIS 116576, at *2 (W.D. Mich. Nov. 1, 201 0) (noting “[a]n expanding list of Federal courts have found that, under 18 U.S.C. §§ 3664(m) a nd 3613(a), the government is not limited by judicially crafte d payment plans and may freely pursue other means of securing restitution, including a writ of garnishment”); United States v. Picklesimer , No. 3:00CR0008, 2010 U.S. Dist. LEXIS 71052, at *4 (W.D.N.C. June 24, 2010) (“E ven the exis tence of a judicially prescribed payment sc hedule” does not preclude the G overnment from pursuing a continuing writ of garnishment against other proceeds); United States v. Clayton , 646 F. Supp.15 2d 827, 835 (E.D. La. 2009) (finding that “The Enforcement Prov isions of the MVRA Trump any Payment Schedule Included in the J&C” and permitting government’s garnishment of assets beyond the detailed restitu tion payment schedule); United States v. Miller , 588 F. Supp. 2d 789, 801–02 (W.D. Mich. 2008) (permitting government’s garnishment o f defendant’s pension where judgment provided for an initial payment of a lump-sum amount a nd subsequent monthly installment payments during the de fendant’s term of incarcerati on); United States v. Hawkins , 392 F. Supp. 2d 757, 759 (W.D. Va. 2005) (“holding that these c ourt-imposed payment schedules are merely one means available to enforce a restituti on judgment and do not prevent the government from pursuing othe r lawful enforcement methods” (internal quotations omitted)) (collecting cases). Notwithstanding the non-binding, ou t-of-circuit authority cited by the government, this Court is not persua ded that any provisi on or purpose of the MVR A permits the government to ignore the specific terms of the restitution order, including, in particular, a payment schedule imposed after consideration of the requisite statutory factors concerning the economic circumstances of the defendant. A s the Tenth Circuit has state d, “[t]he government has statutory authority to enforce only the te rms of a restitution order, notto take an enforcement action that would exceed a restitution or der’s payment terms.” Martinez , 812 F.3d at 1207. Indeed, the government points to no circuit de cision holding th at the general enforcement provisions of the MVRA permit the government to override a cour t-ordered payment schedule. Instead, the government gives cu rsory reliance to non-binding d ecisions in United States v.
Shusterman , 331 F. App’x 994 (3d Cir. 2009) and United States v. Ekong , 518 F.3d 285 (5th Cir. 2007). Gov’t’s Opp’n at 4–5. In both Shusterman and Ekong , the Third and Fifth Circuits, respectively, permitted the government to garnish assets of incarcerated defendants where the16 restitution orders expr essly stated that a pa yment schedule wou ld take effect upon commencement of supervised release

. See Shusterman , 331 F. App’x at 996–97; Martinez , 812 F.3d at 1207 (providing detail om itted from Fifth Circuit’s Ekong decision based on review of judgment in United States v. Ekong , No. 3:04-CR-030-M (N.D. Tex. Sept. 10, 2004), ECF No. 74, that restitution order requi red payment schedule to take ef fect upon commencement of the term of supervised release) . As the Tenth Circuit in Martinez concluded in its review of Ekong , “the [restitution] payment schedule was triggered only if the d efendant had not paid the full restitution amount by the time she began supervised release.” Martinez , 812 F.3d at 1207. Consequently, neither Shusterman nor Ekong stands for the proposition posited by the government here that the MVRA’s general enforcement provisions take precedence over the court-ordered payment schedule b ecause in both those cases, the payment schedule had yet to take effect. Moreover, due t o the scarcity of reasoning in Ekong , the Tenth Circuit concluded that it was “impossibl e to tell” whether t he conclusion reached in that case was because the Fifth Circuit “(1) agreed with the gove rnment that the judgment requi red immediate payment of the full restitution amount, requiring installments only if the def endant failed to pay the full amount by the time she began supervised release or (2) concluded that the government c ould garnish the full restitution amount in all cases, regardless of the languag e in the restitution order.” Id. at 1208. In short, this Court agrees w ith the Tenth Circuit that “we do not believe Ekong helps us decide whether the government wa s entitled to garnish [the defe ndant’s] retirement accounts in the absence of a default on his payment schedule.” Id. Most importantly, the government ’s interpretatio n of the paymen t-schedule language in the restitution order at issue he re fails to grapple with a rec ent D.C. Circuit decision holding that where an order of restitution sta tes that “‘the balance of any restitution [is] owed at a rate of not17 less than $50 each month,’ . . . [t]hat statement, however, mus t mean that a rate of not less or

more than $50 each month was required.” Hughes , 813 F.3d at 1009 (emphasis in original). In reaching this conclusion, the D.C . Circuit reasoned: “[o]therwi se, given the wide range between $50 and [the full restitution amount owed], the judgment would be virtually meaningless. (Of course, the court can still adjus t its payment schedule if the defendant’s economic circumstances change. 18 U.S.C. § 3572(d)(3).)” Id. Thus, the Hughes Court found the monthly restitution payment amount to be the maximum the government was authorized to collect from the defendant. Id. ; cf. United States v. Fariduddin , 469 F.3d 1111, 1112–13 (7th Cir. 2006) (interpreting judgment that “‘t he defendant is t o pay restituti on at a rate of not less than $150.00 per month’” to be a “ minimum installment . . . a floor rather than a ceiling,” where defenda nt in plea agreement agreed that “‘a ny and all financial obligations imposed by the sentencing court are due and payable upon entry of the judgment of conviction’” and agreed “‘not to request any delay or stay in payment of any a nd all financial obligations’” (emphasis in original)). Here, the restitution order states plainly that the defendant “ shall pay the balance of any restitution owed at a rate of no less th an $500 each month”— ne arly identical language to that analyzed in Hughes

. Compare J & C at 6, and Tr. Sentenci ng Hr’g at 29:12–13 (defendant “must pay the balance of any r estitution owed at a rate of no l ess than $500 each month”), with Hughes , 813 F.3d at 1009 (“‘the balance of any restitution [is] owed at a rate of not less than $50 each month’”). The Court imposed this installment payment sche dule after review of the PSR, which fully described the defenda nt’s assets in his retirement savings and brokerage accounts.
See PSR ¶¶ 64–65. 11 Indeed, as noted, supra n.4, the Court ordered a lower monthly payment

11 The record is somewhat unclear whether the Fidelity Brokerage Account ($2,764.56) and the Fidelity Rollover Individual Retirement Account ($212,051.71) are genera lly mentioned in the PSR or are new accounts identified by the government post-sentencing, but the governmen t does not suggest that th ese accounts represent a changed circumstance and, there fore, the Court does not treat them as such.18 than the USPO recommended. If th e government wanted to recover the defendant’s assets held by Fidelity Investments, “it was incumbent on the government to speak up at that time, rather than accepting the Court’s ru ling without objection and then at tempting to circumvent it by garnishment.” United States v. Roush , 452 F. Supp. 2d 676, 682 (N.D. Tex. 2006). In accordance with binding precedent from the D.C. Circuit in Hughes , this Court finds that the language used in the judgment and at the sentencing hearing req uired the defendant to pay the balance of any restitutio n owed at a rate of no less or more than $500.00 each month, and that the savings accounts disclosed in the PSR are not now belatedly subject to garnishment. The part of the restitution orde r stating that restitution be “ immediately payable,” Tr. Sentencing Hr’g at 28:16–17, does not supersede the monthly sch edule of payments imposed at the time of sentencing. Indeed, the D.C. Circuit in Hughes confronted similar language, in combination with the order for installment restitution payments , and discounted this portion of the restitution order as merel y “boilerplate language.” Hughes , 813 F.3d at 1009. 12 Other courts

12 To the extent the government contends that “immediately payab le” language in a restitution order has import, the Court agrees. This language has the operative effe ct of requiring the defendant to make payments on any restitution obligation during his period of incarceration, whic h may be accomplished by the defendant’s voluntary participation in the Bureau of Prisons (“BOP”) Inmate Financial Responsibility Program (“I FRP”), as ordered here. Tr. Sentencing Hr’g at 28:16–17; see United States v. Godoy, 706 F.3d 493, 499 (D.C. Cir. 2013) (modifying sentence “to reflect the fact tha t enrollment is voluntary” in the IFRP); see also United States v. Bedonie , 317 F. Supp. 2d 1285, 1329–30 (D. Utah 2004) (noting that the traditio nal practice of declaring re stitution awards due and payable in full immediately “had the advantage of allowing the Bureau of Prisons to begin immediate collection of restitution through its program a nd later, after a defendant’s release from prison, for the probation office to do the same thing”), rev’d and remanded on other grounds sub nom. United States v. Serawop , 410 F.3d 656 (10th Cir. 2005). Absent alternative instru ctions regarding a schedule fo r restitution payment during the term of imprisonment, the “immediately payable” language may also permit the governme nt to collect other asse ts belonging to the defendant outside of wages earned in prison through the IFRP. See United States v. James , 312 F. Supp. 2d 802, 804–07 (E.D. Va. 2004) (permitting garnishment of defendant’s r etirement accounts des pite defendant’s participation in IFRP where res titution was “due and payable im mediately” and the monthly payment schedule did not commence until sixty days aft er release from imprisonment). In this case, the Court set no restitution payment schedule prior to the defendant being placed on supervised rele ase, leaving any specific amount of payments required during incarceration un certain or up to BOP. The majo rity of circuits have held that ordering immediate payment of restitution, without sp ecifying a payment schedule d uring incarceration, eff ectively leaves such a schedule to be developed by BOP and constitutes an impermissibl e delegation of authority under the MVRA, but the D.C. Circuit has declined to opine on this issue. See United States v. Hunter , 786 F.3d 1006, 1012 (D.C. Cir. 2015) (recognizing that “majority of th e circuits” agr ee that distric t court may not delegate “its own scheduling duties” in restitution orders that leave a prisoner’s payments up to IFRP and collecting cases, but d eclining to rule “on the19 have similarly given effect to the specific payment schedule pr ovided in a restitution order, notwithstanding inclusion in the o rder of language that restitu tion was “payable immediately.” See, e.g. , Scales , 2016 U.S. App. LEXIS 5179, at *8 (“Whate ver the phrase ‘payable immediately’ means, its effect is limited by the requirement th at the manner in which restitution is to be paid must be c onsistent with a defendant’s ability to pay.”); United States v. Grigsby , No. 12-10174, 2016 U.S. Dist. LEXIS 34170 (D. Kan. March 16, 2016) (order that “payment begin immediately” authorizes only t he monthly payment schedule); accord United States v. Pascucci , No. 98 cr. 278, 2009 U.S. Dist. LEXIS 52152, at *8–9 n.4 (S.D.N .Y. June 18, 2009) (finding that when collecting restitution, the government must “bill the [def endant] in conformity with the court-approved schedule”). In s hort, the government’s reliance on the “immediately payable” language to support the instant garnishment action, absent any default by the defendant on his payment schedule, is misplaced. The government makes a feeb le effort to distinguish Hughes as “factually inapposite,” Gov’t’s Opp’n at 5, despite the f act that this binding decisionaddressed virtually identical language as that at issue here. In a single sentence, the gove rnment summarily rejects the binding nature of the Hughes decision for “turn[ing] on an erro r in the understanding of th e

permissibility of such orders”); United States v. Baldwin , 563 F.3d 490, 491–92 (D.C. Cir. 2009) (declining to accept government’s conf ession that the distr ict court “committ ed error in failing to specify the amount and schedule of [the defendant’s] restitution payments during her incarcerat ion,” and, instead, concluding that, absent preservation of any objection, “we cannot say that the district court commit ted ‘plain error’ in its res titution order” by delegating authority to BOP to determine restitution obligation payments d uring incarceration); United States v. Small , 13 F. Supp. 3d 24, 28 (D.D.C. 2014) (noting that D.C. Circuit has hel d only “that it is not plain err or for a district court to have failed to determine the pay ment schedule for a defendant w ho participates in the IFRP” (emphasis omitted)). The delegation issue is not prese nted in this case nor addresse d in Hughes. Nevertheless, the Hughes Court’s holding that a restitution payment schedule imposed as a specia l condition of supervised rel ease is “controll[ing]” as the “limit” on restitution paymen ts raises the question whether “boilerplate” reference to restitution being “immediately payable,” Hughes , 813 F.3d at 1009—without an express payment schedule tethered to consideration of the defendant’s economic circumstances while incarcerated—is sufficient to require or confer authorityon BOP to implement restitution payments during incarceration. This question need not be answered to resolve the pending motion, however.20 sentence imposed by the Court a nd [] focus[ing] on collection u nder the Treasury Offset Program (TOP), not on Garnishment under the Federal Debt Collection Pro cedures Act (FDCPA).” Gov’t’s Opp’n at 5. Yet, the fact that the government’s collec tion effort in Hughes was through the TOP, rather than FDCPA garnishment, is immaterial. Focusin g on the mechanism used by the government to collect a resti tution obligation side-steps t he issue here of whether the government is authorized to accelerate payments that are not ye t due under the payment schedule. Moreover, the Hughes Court’s focus on the district c ourt’s “understanding of the sentence,” Gov’t’s Opp’n at 5, shows the importance of giving e ffect to the sentencing judge’s consideration of statu tory factors in providing for a restituti on payment schedule. In Hughes , the defendant, who had played a relat ively minor role in a fraud sc heme, was ordered to pay $442,330 in restitution, jointly and s everally with her co-defe ndant, but the court “expressed a clear intention that the actual restitution amount should be mu ch smaller, perhaps as little as $0,” and ultimately imposed a paymen t schedule “at a rate of not les s than $50 each month.” Hughes , 813 F.3d at 1008 (internal quotations omitted). Upon review of the sentencing hearing record, the Hughes Court determined that “the int ent to limit the payment to $50 a month is especially clear,” id. at 1009, such that the defenda nt “would only be delinquent if she paid less than $50 per month,” id. at 1011, with the consequence thatthe government was required to return the defendant’s tax retur ns “and to stop its purported application of TOP so long as [the defendant] is not delinquent . . . .” Id. The holding in Hughes is dispositive here and requires that the defendant’s motion to quash the government garnishment be granted. This conclusion i s supported by at least two additional reasons. First, the government’s position that the monthly payment schedule should21 be treated as a floor on restitu tion payments due, rather than a ceiling, undermines the statutory mandate for the court to estab lish “the manner in which, and th e schedule according to which, the restitution is to be paid,” after consideration of the defe ndant’s financial resources, assets, projected earnings, income, and financial obligations. 18 U.S. C. § 3664(f)(2). If the defendant is unable to pay “any amount of a restitution order” or comply with “any reasonable schedule of payments,” the court may direct t he defendant “to make nominal periodic payments.” Id. § 3664(f)(3)(B). Conversely, failure to consider the defendant’s economic circumstances, as required by the MVRA, in setting eith er a lump-sum payment or i nstallment payment schedule has been found to be plainly erroneous. See, e.g. , Paroline , 134 S. Ct. at 1742–43 (Sotomayor, J., dissenting) (“Courts of App eals have uniformly found it an abuse of discretion to require defendants to make immediate lump -sum payments for the full amo unt of a restitution award when they do not have the ability to do so.” (citing United States v. McGlothlin , 249 F.3d 783, 784 (8th Cir. 2001) and United States v. Myers , 198 F.3d 160, 168–69 (5th Cir. 1999))); see also
Scales , 2016 U.S. App. LEXIS 5179, at *5–6 (no ting that failure to se t a payment schedule where defendant lacked resource s is reversible plain error); Martinez , 812 F.3d at 1206 (“[W]e have held that a court commits plain error when failing to prop erly consider a defendant’s financial condition before issu ing a restitution order.”); United States v. Grant , 715 F.3d 552, 560 (4th Cir. 2013) (vacating rest itution order upon finding th at “when a court imposes payment obligations that are untethered f rom the defendant’s ability to meet those obligations, the court exceeds its authority”); United States v. Coates , 178 F.3d 681, 684 (3d Cir. 1999) (finding that district court failed to comply w ith the MVRA where “[i]t did n ot specify in the restitution order the manner in which, and schedule according to which, the resti tution is to be made.” (internal quotations omitted)).22 Construing the MVRA to permit th e government to collect payment on the full restitution ordered, where the court has conc luded that only installment or nominal payments are due, is plainly at odds with the statuto ry scheme and would render mean ingless the statutory requirement that the court cons ider various enumer ated factors relating to the defendant’s financial ability to pay restitution. See Hughes , 813 F.3d at 1011 (Brown, J., concurring) (“‘[T]he statutory scheme dire cts the district court, not the g overnment, to direct how and when the defendant is to satisf y a restitution order . . . [t]he gov ernment [can]not usurp the district court’s role by enforcing paym ents not yet due under the court- ordered payment schedule.’” (quoting Martinez , 812 F.3d at 1201–02, 1206)); Grant , 715 F.3d at 558 (observing that MVRA statutory scheme “carefully bala nce[s] the need for obtaining v ictim compensation with a requirement that restitution ob ligations be based on the defend ant’s ability to pay”); Roush , 452 F. Supp. 2d at 681 (granting motion to quash government’s writ of garnishment, e xplaining that “[p]ermitting the government to execute on the full amount of r estitution at any time it chooses would plainly disrupt the balance set by the court when it esta blished the payment schedule . . . [and] will also contravene[] Congress’s evident intent for the courts to overs ee the timing of payment, both in initially estab lishing the schedule and in mod ifying it in response to changed circumstances”). Second, relatedly, the government contends that limiting collec tion efforts to the payment schedule set out in the restitution order would allow “a single provision aimed at lenity [to] [] completely swallow the greater number and proportion of provisi ons” in the MVRA, Gov’t’s Opp’n at 4, 13 but this analysis is upside dow n. On the contrary, authorizin g the government to

13 The government argues limiting enforcement of the restitution order to the payment schedule would treat the monthly payments as “each se parate and enforceable judgment s,” a result incompatible with the MVRA because this would make two provisions , Section 3664(m), permitting col lection of after-acquired assets by the defendant, and Section 3664(n), permitting collection of assets that had b een hidden and later discov ered, “impermissible.”23 ignore a court-ordered payment s chedule would make meaningless and unnecessary not only the court’s role in evaluating the a ppropriateness of a payment sch edule but also other MVRA provisions guiding the content, a djustment and enforcement of r estitution orders. See, e.g. , 18 U.S.C. §§ 3572(d)(1), 3664(f)(3)(A ) (outlining payment options as an alternative to immediate payment); 18 U.S.C. §§ 3572(d)(3), 3664(k) (providing mechanism s for adjustment of a restitution order when m aterial changes to the defendant’s econ omic circumstances occur); 18 U.S.C. § 3572(i) (providing enforcement mechanisms for defaulti ng on a restitution payment schedule). If, as the government advocates, the MVRA requires immediate payment of the full restitution obligation notwithst anding imposition of a payment schedule, these provisions would be unnecessary, as the defendant would already be under an obli gation to pay the entire amount. See Martinez , 812 F.3d at 1205. The government simply sidesteps these sign ificant statutory construction concerns. Accordingly, because the restitution order requires the defenda nt to pay his restitution obligation in monthly install ments of $500.00 each month, J & C at 6, and he has fully complied with this requirement, the govern ment may not garnish the defen dant’s retirement and brokerage accounts to satisfy a judgment in a manner not countenanced in the restitution order. The Court does not intend for this “decisi on [to] be read as discouraging the government from zealously attempting to collect restituti on and make the victims of crime whole,” Roush , 452 F. Supp. 2d at 682, but such efforts must take place within the statutory f ramework that Congress enacted.

Gov’t’s Opp’n at 3. The government fails to acknowledge, howev er, that the adjustment provision in the MVRA resolves the government’s manu factured conflict. Both Section 3664(m) and Section 3664(n) would amount to “material change[s] in the defendant’s economic circumstances t hat might affect the defendant’s ability to pay restitution,” permitting a court to revisit the original senten ce. 18 U.S.C. § 3664(k). Of course, in this case, the savings accounts targeted by the government’s garnishment writ were disclosed in the PSR and therefore not hidden or acquired after sentencing.24 III. CONCLUSION For the reasons set forth above , the defendant’s motion to quas h is granted and the government’s writ of garnishment is quashed. An appropriate or der will be filed contemporaneously with this Memorandum Opinion. Date: July 11, 2016

________________________ BERYL A. HOWELL Chief Judge