FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-10233

Plaintiff-Appellee, D.C. No.

v.  CR-86-20083-RMW

RONALD J. GIANELLI, ORDER AND

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Northern District of California

Ronald M. Whyte, District Judge, Presiding

Argued and Submitted

February 12, 2008—San Francisco, California

Filed September 17, 2008

Before: William C. Canby, Jr., David R. Thompson, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Thompson

13009
COUNSEL

Patrick James Sullivan, Oakland, California, for the

defendant-appellant. 

Richard A. Friedman, United States Department of Justice,

Washington, D.C., for the plaintiff-appellee. 

UNITED STATES v. GIANELLI 13011
ORDER

The appellant Gianelli’s Petition for Rehearing is

GRANTED. The opinion filed March 20, 2008, and published

as United States v. Gianelli, 519 F.3d 962 (9th Cir. 2008), is

withdrawn. In place of that withdrawn opinion, a new opinion

is filed with this Order. 

The parties are not precluded from filing further petitions

for rehearing.

OPINION

THOMPSON, Senior Circuit Judge: 

In May of 1987, Ronald J. Gianelli (“Gianelli”) pleaded

guilty to one count of mail fraud, 18 U.S.C. § 1341, in the

Northern District of California. As part of his sentence he was

ordered to pay restitution to the federal government in the

amount of $125,000. Gianelli did not appeal that judgment. 

Gianelli now appeals a May 2007 district court order reinstating an October 17, 2001 Order Imposing Payment Plan

aimed at collecting the remaining amount of restitution owed.

Gianelli contends that the government is barred from enforcing the restitution judgment because ten years from the date

of that judgment passed on May 13, 1997, and California state

law precludes enforcement of a judgment after that period of

time. He further argues that the original $125,000 restitution

amount was improper because it was not predicated upon the

government’s actual loss, as required by Hughey v. United

States, 495 U.S. 411 (1990). 

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

that Gianelli waived the right to appeal the amount of the restitution order by failing to file a direct appeal, and we affirm

13012 UNITED STATES v. GIANELLI
the district court’s May 1, 2007 order reinstating the October

17, 2001 payment plan. 

I. BACKGROUND

An indictment filed on July 31, 1986, in the United States

District Court for the Northern District of California charged

Gianelli with six counts of mail fraud, conspiracy to defraud

the United States, and 17 counts of receiving kickbacks on

subcontracts for Defense Department procurement contracts.

Gianelli pleaded guilty to one count of mail fraud. The

remaining counts were dismissed. He was sentenced on May

13, 1987 to five years of imprisonment, with all but six

months suspended, and ordered to pay $125,000 in restitution

to the United States. The remaining counts were dismissed. 

On October 29, 1991, while Gianelli was on probation, he

entered into an agreement with the Probation Office that he

would make payments of $100 per month toward the satisfaction of his restitution debt. Gianelli substantially made the

payments as agreed. Then, on December 15, 1999, in an

attempt to satisfy the outstanding balance of $109,300, the

government applied for a writ of execution under the Federal

Debt Collection Procedures Act, 28 U.S.C. § 3203. The government wanted to levy the writ on a house and 52 acres of

land belonging to Gianelli. After numerous objections, the

district court, by a September 19, 2001 order, adopted the

magistrate judge’s finding that the United States was “entitled

to issuance of the writ,” but the court suggested an alternative

payment plan by which “in lieu of execution . . . it would be

just . . . to allow [Gianelli] to pay his debt in monthly installments, including interest so as to provide the United States

with the full value to which it is entitled . . . .” 

On September 25, 2001, Gianelli agreed to the installment

payment alternative, but expressly reserved his objection to

the government’s right to collect his restitution obligation. On

October 17, 2001, the district court entered the installment

UNITED STATES v. GIANELLI 13013
payment order. On October 26, 2001, Gianelli timely filed his

notice of appeal from that order. Gianelli argued that the district court lacked authority to order him to make further payment on his restitution obligation because under California

state law that obligation expired in 1997, ten years after the

restitution judgment in the case. 

On February 3, 2003, we vacated the district court’s October 17, 2001 installment payment order, and remanded for

further proceedings to determine whether restitution was

ordered under the Federal Probation Act (“FPA”),1 or the Victim Witness Protection Act (“VWPA”).2

See United States v.

Gianelli, 55 Fed. App’x. 831, 832 & n.1 (9th Cir. 2003). We

did not reach the question whether the restitution obligation

was still extant. Id. 

On remand, the district court determined that the statutory

basis for the restitution order was the VWPA. The district

court then entered its May 1, 2007 order, reinstating the October 17, 2001 payment plan. The district court found that Gianelli had waived his argument as to the propriety of the

amount of restitution by failing to appeal the 1987 judgment.

The district court thus declined to consider Gianelli’s argument that the original $125,000 restitution amount was not the

government’s actual loss as required by the VWPA under

Hughey, 495 U.S. 411. The district court determined that the

“VWPA did not at the time of defendant’s offense limit the

time in which [restitution] could be enforced.” The district

court also noted that “[d]uring the pendency of this remand

. . . the United States received payment of $80,901.88 from

the [voluntary] escrow sale of [Gianelli’s] real property . . .

1

18 U.S.C. § 3651, repealed by Sentencing Reform Act of 1984, Pub.

L. No. 98-473, § 212(a)(2), 98 Stat. 1837 (1984) (effective Nov. 1, 1987).

2Pub. L. No. 97-291, § 5(a), 96 Stat. 1248 (1982) (codified at 18 U.S.C.

§§ 3579(h) & 3580), renumbered by Sentencing Reform Act of 1984, Pub.

L. No. 98-473, § 212(a)(1), 98 Stat. 1837 (1984) (now at 18 U.S.C.

§§ 3663 and 3664). 

13014 UNITED STATES v. GIANELLI
[and] [t]he parties have stipulated that if the court finds that

the restitution order is not time-barred . . . these funds will be

applied to and fully satisfy defendant’s restitution debt, absent

a contrary order from the court of appeals.” Gianelli now

appeals this May 1, 2007 order. 

II. STANDARD OF REVIEW

We review de novo questions of statutory interpretation.

United States v. Horvath, 492 F.3d 1075, 1077 (9th Cir.

2007). “Whether an appellant has waived his statutory right

to appeal is [also] a matter of law reviewed de novo.” United

States v. Shimoda, 334 F.3d 846, 848 (9th Cir. 2003) (internal

citations omitted).

III. DISCUSSION

A. Enforcement of Restitution under the VWPA

On remand, the district court determined that the restitution

order was predicated upon the VWPA. Gianelli does not dispute this determination. He argues that, under the then existing version of the VWPA, the government is forbidden from

collecting the balance of his restitution debt because under

California state law the ability to collect the restitution balance expired ten years after the date of his conviction.3

[1] Gianelli is correct that California law typically precludes the issuance of a writ of execution to enforce a judgment when 10 years has passed since the judgment was

entered. Cal. Civ. Proc. Code § 683.020. The VWPA provides

that a judgment under that Act “may be enforced by the

United States or a victim named in the order to receive the

restitution in the same manner as a judgment in a civil

action.” 18 U.S.C. § 3579(h), renumbered by Sentencing

Reform Act of 1984, Pub. L. No. 98-473, § 212(a)(1), 98 Stat.

3

Judgment was entered in his case on May 13, 1987. 

UNITED STATES v. GIANELLI 13015
1837 (1984), repealed by Antiterrorism & Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, § 205(a)(2), 110

Stat. 1214, 1230 (1996). As Gianelli points out, according to

Federal Rule of Civil Procedure 69(a)(1) federal enforcement

by writ of execution “must accord with the procedure of the

state where the court is located . . . .” Fed. R. Civ. P. 69(a)(1).

[2] Although Federal Rule of Civil Procedure 69(a)(1) provides that the federal government’s enforcement by writ of

execution “must accord with the procedures of the state where

the court is located,” that Rule goes on to provide that notwithstanding this directive, “a federal statute governs to the

extent it applies.” Fed R. Civ. P. 69(a)(1). The Federal Debt

Collection Procedures Act of 1990 (“FDCPA”) is such a statute. The FDCPA provides that, with the exception of conflicting federal law, it “provides the exclusive civil procedures for

the United States to . . . recover a judgment on a debt.” 28

U.S.C. § 3001. “Debt” includes “an amount that is owing to

the United States on account of . . . restitution . . . .” 28 U.S.C.

§ 3002(3)(B); see also United States v. Mays, 430 F.3d 963,

965 (9th Cir. 2005) (concluding that the FDCPA’s civil

enforcement remedies may be used to enforce orders of restitution entered under the MVRA4

). The FDCPA further provides that it “shall preempt State law to the extent such law

is inconsistent.” 28 U.S.C. § 3003(d). 

[3] Contrary to Gianelli’s argument, the California state

law at issue, California Civil Procedure Code section 683.020

(1987), which would preclude enforcement of a restitution

judgment after ten years from the entry of that judgment, is

such an inconsistent state law and is, therefore, preempted.

The FDCPA provides no time limit for the collection of debts

by writ of execution. See 28 U.S.C. § 3203. Further, because

the purpose of the FDCPA “is to create a comprehensive statutory framework for the collection of debts owed to the

4The statutory analysis in Mays applies equally to restitution ordered

under the VWPA. See 18 U.S.C. §§ 3663(d); 3664(m)(1)(A)(i); 3613(a).

13016 UNITED STATES v. GIANELLI
United States government [and to] improve the efficiency and

speed in collecting those debts,” H.R. Rep. No. 101-736, at 32

(1990), a state law limiting such collection is inconsistent

with the purpose of the act and is, therefore, preempted. See

Mays, 430 F.3d at 965 (noting that the “FDCPA was enacted

‘to give the Justice Department uniform Federal procedures—

prejudgment remedies and postjudgment remedies—to collect

debts owed the United States nationwide.’ ”) (quoting H.R.

Rep. No. 103-883, at 81 (1995)). 

Although not binding upon us, the reasoning of United

States v. Pierce, 231 B.R. 890, 893 (E.D.N.C. 1998) supports

our conclusion. In Pierce, the district court rejected the argument that where the government proceeded to enforce a judgment under the FDCPA, Federal Rule of Civil Procedure

69(a)(1) incorporated a state law limitation prohibiting

enforcement after ten years. Id. That court reasoned that, in

light of the legislative history underlying the FDCPA and the

language of the statute itself, binding the federal government

to state law limitations on enforcement “would completely

thwart the FDCPA’s stated purpose of the creation of uniform

federal procedures for the collection of debts to the federal

government.” Id. We agree. 

We also reject Gianelli’s contention that the Ex Post Facto

Clause precludes enforcement of the extant restitution judgment under the FDCPA. It is well established that an Ex Post

Facto violation occurs when a law “changes the punishment,

and inflicts a greater punishment, than the law annexed to the

crime, when committed.” Carmell v. Texas, 529 U.S. 513,

522, 525 (2000) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386,

390, 1 L.Ed. 648 (1798)). Procedural changes, such as the

enforcement mechanism provided by the FDCPA in Gianelli’s case, which do not “alter[ ] the definition of criminal conduct or increase[ ] the penalty by which a crime is

punishable,” do not violate the Ex Post Facto Clause. California Dep’t of Corrections v. Morales, 514 U.S. 499, 506 n.3

(1995); see also Quarles v. Kane, 482 F.3d 1154, 1155 (9th

UNITED STATES v. GIANELLI 13017
Cir. 2007) (amendment to California statute which increased

the rate at which restitution payments could be collected was

not an Ex Post Facto Clause violation because it did not

impose additional punishment); United States v. Baggett, 125

F.3d 1319, 1323 (9th Cir. 1997) (procedural changes which

made it less onerous for an United States Attorney to substantiate requested restitution amounts was not an Ex Post Facto

Clause violation because the changes did not increase the

available punishment). 

[4] In view of the foregoing, we conclude that because the

government proceeded to collect Gianelli’s VWPA restitution

obligation by means of the FDCPA, the California limitation

on enforcement set forth in California Code of Civil Procedure § 683.020 is inapplicable.5

B. Appeal of Restitution Amount

Gianelli also argues that the sentencing portion of the 1987

judgment that required him to pay restitution in the amount of

$125,000 was improper under Hughey. Interpreting 18 U.S.C.

§§ 3579 and 3580 in Hughey, the Supreme Court held that

“the language and structure of the [VWPA] make plain Congress’ intent to authorize an award of restitution only for the

loss caused by the specific conduct that is the basis of the

offense of conviction.” Hughey, 495 U.S. at 413. 

[5] Gianelli was sentenced on May 13, 1987. He never

appealed that sentence. The first time he filed an appeal

5We express no opinion on whether, even though California law would

bar the issuance of a writ of execution on the extant restitution judgment,

California law would not preclude the federal government from filing a

new lawsuit on the judgment and obtaining a renewed judgment that

would be enforceable under California law. See Custer v. McCutcheon,

283 U.S. 514, 519 (1931); Smith v. United States, 143 F.2d 228, 229 (9th

Cir. 1944); see also United States v. Thornburg, 82 F.3d 886, 893-894 (9th

Cir. 1996); United States v. Overman, 424 F.2d 1142, 1147 n.7 (9th Cir.

1970); Smith, 143 F.2d at 229. 

13018 UNITED STATES v. GIANELLI
related to his case was October 26, 2001. In that appeal, he

challenged the October 17, 2001 district court Order Imposing

Payment Plan for his outstanding restitution balance.6

[6] Gianelli waived his ability to appeal the amount of restitution ordered in the 1987 judgment by failing to file a direct

appeal from that judgment. See United States v. James, 109

F.3d 597, 599 (9th Cir. 1997) (concluding that where a defendant fails to raise an issue in his first direct appeal he waives

the issue); United States v. Schlesinger, 49 F.3d 483, 485 (9th

Cir. 1994) (concluding that “nonconstitutional sentencing

errors that have not been raised on direct appeal have been

waived and generally may not be reviewed by way of [a

habeas petition]”). But see United States v. Broughton-Jones,

71 F.3d 1143, 1147 (4th Cir. 1995) (holding, in the context of

a valid waiver of appeal executed pursuant to a plea agreement, that “[b]ecause a restitution order imposed when it is

not authorized by the VWPA is no less illegal than a sentence

of imprisonment that exceeds the statutory maximum, appeals

challenging the legality of restitution orders are . . . outside

the scope of a defendant’s otherwise valid appeal waiver.”)

(internal quotation marks omitted). 

[7] While Gianelli has not asserted any authority under

which he might bring a collateral attack of the restitution

order, in the somewhat analogous context of federal habeas

relief, 28 U.S.C. § 2255, “an error of law [or fact] does not

provide a basis for collateral attack unless the claimed error

constituted a fundamental defect which inherently results in a

complete miscarriage of justice.”

7 United States v. Addonizio,

6Gianelli raised his Hughey objection in his reply brief related to that

2001 appeal. This does not affect the outcome of his case. In addition to

the fact that arguments raised for the first time in a reply brief are generally considered waived, Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th

Cir. 1990), as discussed below, Gianelli waived his ability to appeal the

amount of his restitution judgment by not timely appealing that judgment.

7Gianelli cannot present his claim for relief from the restitution order as

a habeas petition because he is not seeking release from custody, and

because review of restitution orders is not properly brought in a habeas

petition. See United States v. Thiele, 314 F.3d 399, 401 (9th Cir. 2002).

UNITED STATES v. GIANELLI 13019
442 U.S. 178, 185-87 (1979) (internal citations and quotation

marks omitted) (noting that a “complete miscarriage of justice” would occur if a court refused to vacate a sentence

where the conduct for which a defendant was convicted was

subsequently made legal) (citing Davis v. United States, 417

U.S. 333 (1974)); see also United States v. Wilcox, 640 F.2d

970, 973 (9th Cir. 1981) (“Errors of law which might require

reversal of a conviction or sentence on appeal do not necessarily provide a basis for [habeas relief].”). 

[8] The indictment which contained the count to which

Gianelli pleaded guilty alleged that Gianelli and others, as a

result of an illegal scheme, received approximately $160,000

in cash. The sentencing court, by way of the Presentence

Report, was aware of this amount, and was aware of Gianelli’s assets, income, and liabilities. The Presentence Report

also indicated that Gianelli “appears to have used approximately $50,000 from the kickback scheme in the purchase of

his current residence in 1983,” and that Gianelli “appears to

have been the primary mover of the scheme, and without his

knowledge and cooperation the scheme could not have been

carried out.” In addition, after our remand in Gianelli’s appeal

of the October 17, 2001 order, the district court noted,

“[d]uring the pendency of this remand . . . the United States

received payment of $80,901.88 from the [voluntary] escrow

sale of [Gianelli’s] real property . . . . The parties have stipulated that if the court finds that the restitution order is not

time-barred . . . these funds will be applied to and fully satisfy

defendant’s restitution debt, absent a contrary order from the

court of appeals.” In light of these factors, it would not be a

“complete miscarriage of justice” if Gianelli were precluded

from collaterally attacking the amount of his restitution obligation.

Gianelli argues that his right to challenge the amount of the

restitution judgment should not be forfeited by reason of his

failure to file a direct appeal back in 1987 because the deci13020 UNITED STATES v. GIANELLI
sion in Hughey did not come down until 1990. This argument

is unpersuasive. 

In 1987 when Gianelli was sentenced, the VWPA provided,

The court, in determining whether to order restitution under section 3579 of this title and the amount

of such restitution, shall consider the amount of the

loss sustained by any victim as a result of the

offense, the financial resources of the defendant, the

financial needs and earning ability of the defendant

and the defendant’s dependents, and such other factors as the court deems appropriate. 

Hughey, 495 U.S. at 416-17 (quoting 18 U.S.C. § 3580(a)

(1982)) (emphasis added). The Hughey court simply reaffirmed what the Act had already “ma[d]e plain”: that it was

“Congress’ intent to authorize an award of restitution only for

the loss caused by the specific conduct that is the basis of the

offense of conviction.” Id. at 413. If Gianelli thought the

amount of restitution ordered was inappropriate back in 1987,

he could have appealed that order. See Schlesinger, 49 F.3d

at 486 (holding that failure to raise an issue on direct appeal

was not excusable where “there is absolutely no reason why

[the defendant] should not have known of, and been able to

appeal, the alleged errors immediately”) (internal quotation

marks omitted). 

Gianelli further argues that he could not have appealed the

amount of the restitution order earlier because it was not until

May 2007 that the district court determined the VWPA was

the basis for the order. This argument is likewise unpersuasive. The two possible bases for the restitution order in 1987

were the VWPA and the FPA. See Gianelli, 55 Fed. App’x.

at 832. As we have previously stated, Gianelli could have

appealed the amount of the restitution order under the VWPA

if he had been inclined to bring that appeal in 1987. In addition, at the time of Gianelli’s sentencing in May 1987, the

UNITED STATES v. GIANELLI 13021
FPA provided that a defendant “[m]ay be required to make

restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was

had.” 18 U.S.C.A. § 3651 (repealed Nov. 1, 1987). If Gianelli

had been inclined, when he was sentenced, to challenge the

amount of his restitution obligation on the ground he now

asserts, he could have done so under the then express language of the FPA. See Schlesinger, 49 F.3d at 486.

IV. CONCLUSION

[9] Because the government proceeded under the FDCPA

to enforce the restitution judgment against Gianelli, the government is not bound by California Code of Civil Procedure

§ 683.020, and enforcement is not precluded by the Ex Post

Facto Clause. Gianelli waived his objection to the amount of

the 1987 restitution order by failing to file a timely direct

appeal. 

The judgment of the district court is AFFIRMED. 

13022 UNITED STATES v. GIANELLI