PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

TOBY MARTINEZ, 

 Defendant-Appellant. 

---------------------------------- 

PUBLIC EMPLOYEE RETIREMENT 

ASSOCIATION OF NEW MEXICO; 

NATIONWIDE RETIREMENT 

SOLUTIONS, 

 Garnishees. 

__________________________________ 

No. 14-2203 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

SANDRA MARTINEZ, 

 Defendant-Appellant. 

---------------------------------- 

PUBLIC EMPLOYEE RETIREMENT 

ASSOCIATION OF NEW MEXICO; 

NATIONWIDE RETIREMENT 

SOLUTIONS, 

 Garnishees. 

No. 14-2209 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 16, 2015

Elisabeth A. Shumaker 

Clerk of Court

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_________________________________ 

Appeals from the United States District Court 

for the District of New Mexico 

(D.C. No. 1:07-CR-00615-WJ-1 

and D.C. No. 1:07-CR-00615-WJ-4)

_________________________________ 

Aric G. Elsenheimer, Assistant Federal Public Defender (Brian A. Pori, 

Assistant Federal Public Defender, with him on the briefs) Federal Public 

Defender’s Office, Albuquerque, New Mexico, for Appellant Toby 

Martinez in case number 14-2203. 

Sandra Martinez, filed a brief pro se in case number 14-2209. 

Stephen R. Kotz, Assistant United States Attorney (Damon P. Martinez, 

United States Attorney, with him on the brief) United States Attorney’s 

Office, Albuquerque, New Mexico, for Appellee United States of America. 

_________________________________ 

Before BRISCOE, EBEL, and BACHARACH, Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

_________________________________ 

 At sentencing, the district court ordered Mr. Toby Martinez to pay 

restitution through monthly installments. Nonetheless, the court later 

allowed the government to garnish Mr. Martinez’s retirement accounts, 

which exceeded what Mr. Martinez owed in installments at the time. Mr. 

Martinez and his wife (Ms. Sandra Martinez) contest the garnishments, 

arguing in part that the government cannot enforce payments that are not 

yet due under Mr. Martinez’s court-ordered payment schedule. We agree 

with Mr. and Ms. Martinez and conclude that the district court erred by 

allowing the garnishments to proceed. 

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I. The Restitution Order and the Garnishments 

Mr. Martinez was convicted of mail fraud and conspiracy, which 

required the district court to order Mr. Martinez to pay restitution. See 18 

U.S.C. § 3663A(a), (c) (2012) (requiring restitution for any crime in which 

a victim “has suffered . . . pecuniary loss”). Complying with this 

requirement, the district court ordered roughly $2.7 million in restitution. 

Mr. Martinez was ordered to pay this amount through monthly installments 

based on a percentage of his disposable income. 

But upon leaving prison, Mr. Martinez was unable to obtain steady 

employment and, as a result, has owed relatively little through the courtordered payment schedule. Mr. Martinez contends that he has satisfied that 

schedule, and the government does not argue to the contrary. Nonetheless, 

the government served writs of garnishment for two of Mr. Martinez’s 

retirement accounts. Together, these accounts were worth roughly 

$470,000, but Mr. Martinez did not have immediate access to those funds 

because the accounts had not yet entered distribution status. 

In district court, Mr. Martinez moved to quash the writs of 

garnishment, arguing in part that they would enforce a debt not yet owed. 

The district court denied the motion to quash, and Mr. and Ms. Martinez 

appeal. To decide this appeal, we ask: Can the government garnish assets 

beyond the amount currently due under Mr. Martinez’s court-ordered 

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payment schedule? We conclude that the government cannot do so; as a 

result, we reverse.1

II. Our review is de novo. 

This appeal turns on questions of statutory interpretation. In 

answering these questions, we conduct de novo review over the district 

court’s statutory interpretation. Dang v. UNUM Life Ins. Co. of Am., 175 

F.3d 1186, 1189 (10th Cir. 1999).

III. The government can enforce a restitution order only in a manner 

that does not exceed the payment obligations set out in the 

restitution order. 

Applying de novo review, we must determine whether the 

government can garnish Mr. Martinez’s retirement accounts. To make that 

determination, we consider 18 U.S.C. §§ 3613 and 3664. These provisions 

allow the government to “enforce” an “order of restitution” as if it were a 

lien or civil judgment in favor of the United States. See 18 U.S.C. 

§ 3613(a), (c), (f) (2012) (“The United States may enforce an [order of 

restitution].”); id. § 3664(m)(1)(A)(i) (“An order of restitution may be 

 

1

 On appeal, Mr. and Ms. Martinez also argue that the garnishments (1) 

would create an impermissible fine and (2) violate the Employee 

Retirement Income Security Act, the Internal Revenue Code, and the 

Consumer Credit Protection Act. Ms. Martinez adds that the district court 

erred by (1) failing to provide adequate notice of the garnishments, (2) 

declining to appoint counsel, and (3) denying the motion to quash even 

though Mr. Martinez could not unilaterally withdraw funds from the 

accounts without spousal consent. We need not address these arguments in 

light of our disposition. 

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enforced by the United States . . . .”). Among the government’s 

enforcement tools is the writ of garnishment. Id. § 3205(a). 

The resulting issue is how to identify the portion of Mr. Martinez’s 

restitution obligation that is currently subject to garnishment.2

 In 

addressing this issue, we must examine Mr. Martinez’s restitution order. 

 The government argues that it can garnish the entire amount ordered 

in restitution. In our view, this argument incorrectly assumes that Mr. 

Martinez currently owes the entire restitution amount. 

 By statute, it is the district court―not the government―that 

determines how a defendant is to pay restitution. See id. § 3664(f)(2) 

(“[T]he court shall . . . specify in the restitution order the manner in 

which, and the schedule according to which, the restitution is to be paid 

. . . .” (emphasis added)). Thus, the government can enforce only what the 

district court has ordered the defendant to pay. See Enforce, Black’s Law 

Dictionary 645 (10th ed. 2014) (defining “enforce” primarily as “[t]o give 

force or effect to [a law]; to compel obedience to [a law]”). 

 

2

 Mr. and Ms. Martinez argue that the garnishments constituted an 

impermissible modification of the restitution order. In responding to this 

argument, the government does not contend that it could modify the 

restitution order. Instead, the government contends that the garnishments 

were consistent with the restitution order. As a result, we must decide the 

issue by interpreting the restitution order rather than determining whether 

it was subject to modification. 

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 As a result, we must consider the manner of payment set out in Mr. 

Martinez’s restitution order.

IV. The restitution order required Mr. Martinez only to comply with 

the payment schedule; the order did not create an immediately 

enforceable debt of the full restitution amount. 

The restitution order required Mr. Martinez to do two things. First, 

he had to pay a total amount of about $2.7 million. Second, he had to pay 

monthly installments. In light of these requirements, we must determine 

whether Mr. Martinez 

 owed the full amount immediately or 

 owed only the installment payments until the entire amount was 

fully paid. 

To determine whether the full amount was due immediately, we must 

examine the restitution order and the statutory scheme governing the 

district court’s issuance of that order. The order and the statutory scheme 

lead us to conclude that Mr. Martinez was to remain current with his 

installment payments, but had no obligation to immediately pay the full 

amount. 

A. The district court’s restitution order required Mr. Martinez 

only to pay monthly installments of 25% of his net 

disposable income. 

In two ways, the district court ordered Mr. Martinez only to make 

installment payments rather than to immediately pay the total restitution 

amount. First, the installment schedule called for monthly payments based 

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on a percentage of Mr. Martinez’s disposable income. Second, the district 

court specifically declined to order immediate payment of the entire 

amount. In light of these actions, we conclude that the district court 

required only compliance with the payment schedule and did not make the 

full restitution amount due immediately.

1. The district court’s oral pronouncement controls. 

The court ordered different things in its oral and written 

pronouncements. Orally, the court ordered a fixed monthly amount: 25% of 

Mr. Martinez’s net disposable income. R. vol. 2, at 292. In the written 

judgment, however, the court changed the reference from a fixed amount to 

a minimum payment: “no less than 25% of the net household income.” R. 

vol. 1, at 369 (emphasis added). 

 When the oral and written orders conflict, as they do here, we look to 

the oral pronouncement. See United States v. Marquez, 337 F.3d 1203, 

1207 n.1 (10th Cir. 2003) (holding that “an oral pronouncement of sentence 

from the bench controls over . . . written language”). Under the oral 

pronouncement, Mr. Martinez had to make payments of “25 percent of [his] 

monthly net disposable income.” R. vol. 2, at 292. Nothing in the oral 

pronouncement suggests that the district court intended to make the full 

restitution amount due immediately.3

 

3

 In denying the motion to quash, the district court incorrectly relied 

on the restitution order as memorialized in the written judgment (as 

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2. The district court expressly declined to make the full 

restitution amount due immediately. 

The district court clarified its intent not only in the oral 

pronouncement, but also in the section of the written judgment titled 

“Schedule of Payments.”4

 In this section, the written judgment contains 

two boxes, either of which the court can check to indicate when a 

restitution award will become due. R. vol. 1, at 369. The first box states: 

“In full immediately;” and the second box states: “$300 immediately, 

balance due (see special instructions regarding payment of criminal 

monetary penalties).” Id. The district court left the first box blank and 

checked only the second box. Id. The written “Schedule of Payments” 

section looks like this (without the highlighting): 

 

minimum payments), rather than as recited in the oral pronouncement (as a 

fixed percentage of Mr. Martinez’s disposable income). R. vol. 1, at 528-

29. 

4

 Although our precedents preclude us from considering the written 

“no less than” phrase as part of the restitution order, we can consider the 

written judgment to the extent that the judgment does not conflict with the 

oral pronouncement. See United States v. Young, 45 F.3d 1405, 1417 (10th 

Cir. 1995) (“[T]he oral pronouncement of sentence controls over any 

ambiguity created by the slightly different language of the written 

judgment.”). The “Schedule of Payments” section does not conflict with 

anything in the oral pronouncement.

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By checking the second box, the district court required Mr. Martinez 

to pay only $300 immediately and indicated that the “balance” of the total 

restitution award would become “due” subject to the “special instructions” 

(referring to the payment schedule). See id. (providing a payment schedule 

below the two boxes under “Schedule of Payments”). By leaving the first 

box blank, the district court declined to order immediate payment of the 

full restitution amount. See United States v. Carter, 742 F.3d 440, 444 (9th 

Cir. 2014) (per curiam) (concluding that the judgment did not require 

restitution as part of supervised release conditions, in part because the 

district court had not checked the box requiring restitution). 

* * * * 

 Based on the district court’s oral pronouncement and the “Schedule 

of Payments” section of the written judgment, we interpret the restitution 

order to require Mr. Martinez only to make monthly installment payments 

of 25% of his net disposable income. As long as Mr. Martinez complies 

with this order, the full restitution amount would not become immediately 

due.

B. Under the statutory framework governing restitution 

orders, the installment-based restitution order does not 

create an immediately enforceable debt for the full 

restitution amount. 

Even if the district court did not make the full restitution award due 

immediately, the government argues that Mr. Martinez would owe the full 

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amount based on the statutory scheme governing restitution orders. 

Therefore, the government insists that it can immediately enforce the total 

restitution amount, just as the government could with a civil judgment of 

the same amount. 

But unlike a civil judgment, the restitution order is the product of a 

“specific and detailed [statutory] scheme addressing the issuance . . . of 

restitution orders arising out of criminal prosecutions.” United States v. 

Wyss, 744 F.3d 1214, 1217 (10th Cir. 2014); see 18 U.S.C. § 3664 (2012) 

(establishing the procedure governing issuance of restitution orders); id.

§ 3572 (further establishing the procedure governing issuance of restitution 

orders). As a result, we must construe the restitution order in light of the 

statutory scheme. 

We are guided by three parts of this statutory scheme: 

1. provisions affording the district court the discretion to order 

installment payments and the consequences of a defendant’s 

default on these payments (18 U.S.C. § 3572(d) and (i)), 

 2. provisions requiring the district court to direct the 

 manner of payment after considering the defendant’s financial 

 condition (18 U.S.C. §§ 3664(f)(2) and 3572(a)(1)-(2)), and 

3. provisions granting discretion to the district court to order inkind payments (for example, payments from the funds in 

retirement accounts) (18 U.S.C. § 3664(f)(4)).

Based on these three parts of the statutory framework, we conclude that the 

government cannot enforce the restitution order beyond the monthly 

payment schedule. 

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1. Under 18 U.S.C. § 3572, the full restitution amount is due 

immediately only if the restitution order does not provide 

for installment payments. 

 When ordering restitution, the court must follow the procedure set 

out in 18 U.S.C. §§ 3664 and 3572. Under our reading of §§ 3572(d) and 

(i), an installment-based restitution order does not render the total 

restitution amount due immediately. 

Subsection (d) of § 3572 provides that “[a] person sentenced to pay 

. . . restitution . . . shall make such payment immediately, unless, in the 

interest of justice, the court provides for payment . . . in installments.” Id.

§ 3572(d)(1) (emphasis added). This subsection implies that full payment 

is due immediately only if the district court does not provide for 

installment payments. Thus, a defendant ordered to pay restitution in 

installments need not immediately pay the full amount. Instead, a 

defendant subject to an installment-based restitution order need only make 

payments at the intervals and in the amounts specified by the order. 

Subsection (i) of § 3572 explains what happens when a defendant 

defaults on a restitution order. Under § 3572(i), a defendant who defaults 

on a payment schedule must pay the full restitution award within 30 days, 

“notwithstanding any installment schedule.” Id. § 3572(i). This provision 

would be unnecessary, even meaningless, if the total restitution amount 

were already owed in full under an installment-based restitution order. See 

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United States v. Smith, 756 F.3d 1179, 1187 (10th Cir. 2014) (stating that a 

court must interpret a statute in a way that gives effect to each term). 

In our view, §§ 3572(d) and (i) suggest that an installment-based 

restitution order does not render the total restitution amount due 

immediately. 

2. The government’s position would displace the discretion 

that the statutory scheme extends to the district court to 

tailor the restitution payment schedule to a defendant’s 

financial condition. 

Beyond these express statutory provisions, the government’s theory 

conflicts with the statutory scheme’s directive for the district court to 

impose a payment schedule that reflects a defendant’s financial condition. 

Under 18 U.S.C. §§ 3664 and 3572, the district court must consider 

the defendant’s financial condition before deciding how restitution is to be 

paid. See 18 U.S.C. § 3664(f)(2) (2012) (requiring the district court to 

specify the manner and the schedule of restitution payments “in 

consideration of” the defendant’s financial condition). For example, the 

court must consider the defendant’s financial resources, projected 

earnings, and financial obligations. Id. § 3664(f)(2)(A)-(C). Until these 

financial considerations are considered, the court cannot specify “the 

manner in which, and the schedule according to which, the restitution is to 

be paid.” Id. § 3664(f)(2). Indeed, we have held that a court commits plain 

error when failing to properly consider a defendant’s financial condition 

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before issuing a restitution order. United States v. Ahidley, 486 F.3d 1184, 

1191-92 (10th Cir. 2007). 

In requiring the court to consider the defendant’s financial condition, 

the statute directs the court (not the government) to determine how and 

when the defendant should pay the restitution amount. See United States v. 

Grant, 715 F.3d 552, 558 (4th Cir. 2013) (stating that 18 U.S.C. § 3664 

“carefully balance[s] the need for obtaining victim compensation with a 

requirement that restitution obligations be based on the defendant’s ability 

to pay”). Nonetheless, the government argues that it can use garnishment 

to immediately enforce the full restitution amount even if the district court 

decided to order installment payments (rather than immediate payment) 

after considering the defendant’s financial condition. This interpretation 

would allow the government to usurp the district court’s role in evaluating 

the defendant’s financial conditions and setting the payment schedule. See

United States v. Prouty, 303 F.3d 1249, 1254-55 (11th Cir. 2002) (holding 

that 18 U.S.C. § 3664 expressly requires district courts to set the schedule 

for restitution payments and cannot delegate this authority). 

In our view, the payment schedule reflected the district court’s 

determination of how and when Mr. Martinez should pay the restitution 

after evaluating his financial condition. The government circumvented that 

evaluation by garnishing Mr. Martinez’s retirement accounts in disregard 

of the district court’s payment schedule. 

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3. The government’s position conflicts with the district court’s 

exclusive statutory authority to require in-kind payments. 

Finally, the garnishments would allow the government to recoup an 

in-kind payment on top of the installment payments required in the 

restitution order. The government suggests that it can collect this in-kind 

payment even though Mr. Martinez was in compliance with his payment 

schedule, but this suggestion conflicts with 18 U.S.C. § 3664. Section 3664 

states that in-kind payments can be ordered by the district court, not the 

government. See 18 U.S.C. § 3664(f)(3)(A) (2012) (“A restitution order 

[issued by the district court] may direct the defendant to make a single, 

lump-sum payment, partial payments at specified intervals, in-kind 

payments, or a combination of payments at specified intervals and in-kind 

payments.”). The authority to order in-kind payments remains exclusively 

with the district court even when the district court chooses to establish an 

installment payment schedule. 

Though the district court declined to require in-kind payments, the 

government effectively required them (without statutory authority) by 

garnishing the retirement accounts while Mr. Martinez was in compliance 

with his payment schedule. 

* * * * 

 In these three ways, the statutory scheme directs the district court, 

not the government, to direct how and when the defendant is to satisfy a 

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restitution order. The district court complied with this directive, setting a 

payment schedule rather than requiring immediate payment. The 

government could not usurp the district court’s role by enforcing payments 

not yet due under the court-ordered payment schedule. 

V. Garnishment of Mr. Martinez’s retirement accounts would exceed 

the terms of the restitution order; therefore, the government 

lacks authority to garnish these accounts. 

The government has statutory authority to enforce only the terms of a 

restitution order, not to take an enforcement action that would exceed a 

restitution order’s payment terms. Thus, the government’s enforcement is 

limited by the restitution order, which requires Mr. Martinez only to make 

monthly payments of 25% of his net disposable income. The order does not 

impose any immediately enforceable obligation to pay the full restitution 

amount. 

The garnishments would exceed what the restitution order requires of 

Mr. Martinez. He has had relatively little monthly income; as a result, he 

has owed relatively little in monthly payments. But Mr. Martinez’s 

retirement accounts are worth approximately $470,000. Thus, the 

garnishments would force Mr. Martinez to pay far more than what he owes 

under the installment schedule. This requirement conflicts with the terms 

of the restitution order and the statutory scheme. 

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VI. The district court erred by relying on United States v. Ekong. 

In denying the motion to quash, the district court relied on United 

States v. Ekong, 518 F.3d 285 (5th Cir. 2007) (per curiam). There the Fifth 

Circuit Court of Appeals allowed a garnishment to proceed even though the 

district court had ordered a payment schedule. Ekong, 518 F.3d at 286. 

This determination led to the denial of Mr. Martinez’s motion to quash, 

with the district court calling Ekong “extremely persuasive.” R. vol. 1, at 

529. But in Ekong, the Fifth Circuit addressed very different language in 

the district court’s restitution order. 

In Ekong, the defendant opposed garnishment on the ground that she 

had a payment schedule. Appellant’s Opening Br. at 8-9, United States v. 

Ekong, 518 F.3d 285 (5th Cir. 2007) (No. 06-11185), 2007 WL 5110986. 

But the payment schedule was triggered only if the defendant had not paid 

the full restitution amount by the time she began supervised release: 

If upon commencement of the term of supervised release any 

part of the restitution remains unpaid, the defendant shall make 

payments on such unpaid balance beginning 60 days after the 

release from custody at the rate of $500 per month until the 

restitution is paid in full. 

Judgment in a Criminal Case at 6, United States v. Ekong, No. 3:04-

CR-030-M (N.D. Tex. Sept. 10, 2004), ECF No. 74. The government 

relied on this language in defending its garnishment, arguing that the 

restitution order effectively required immediate payment by requiring 

installments only if the defendant had not fully paid the restitution 

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when she began supervised release. Appellee’s Resp. Br. at 20, 

United States v. Ekong, 518 F.3d 285 (5th Cir. 2007) (No. 06-11185), 

2007 WL 5110987 (“The United States asserts that the language ‘any 

part of restitution remains unpaid’ authorizes the present garnishment 

action.”); United States’ Response to Defendant’s Opposition to 

Plaintiff’s Application for Writ of Garnishment at 4-5, United States 

v. Ekong, No. 3:05-CV-810-K (N.D. Tex. Sept. 30, 2005), ECF No. 

14 (“The United States advances this language ‘any part of 

restitution remains unpaid’ denotes [the defendant’s] requirement for 

immediate payment of the restitution ordered herein.”). 

The Fifth Circuit Court of Appeals ultimately held that the 

installment payments did not prevent the garnishment. Ekong, 518 

F.3d at 286. In doing so, the court concluded that there was nothing 

in the restitution order to prevent the government from aggressively 

enforcing the restitution order. Id. 

It is impossible to tell from the Ekong opinion whether the 

Fifth Circuit reached this conclusion because it (1) agreed with the 

government that the judgment required immediate payment of the full 

restitution amount, requiring installments only if the defendant failed 

to pay the full amount by the time she began supervised release or 

(2) concluded that the government could garnish the full restitution 

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amount in all cases, regardless of the language in the restitution 

order. See id. 

If the Fifth Circuit was relying on the government’s argument 

that the installment schedule was conditional, the argument would 

not apply to the oral pronouncement of Mr. Martinez’s restitution 

order. And if the Fifth Circuit was relying on the statutory scheme, 

the court failed to explain how that scheme would permit 

garnishment of payments not yet due. Thus, we do not believe Ekong

helps us decide whether the government was entitled to garnish Mr. 

Martinez’s retirement accounts in the absence of a default on his 

payment schedule. 

VII. Conclusion 

 We agree with Mr. and Ms. Martinez, concluding that the 

garnishments would entail enforcement of a debt not yet due. As a result, 

the district court should have granted the motion to quash the 

garnishments. Accordingly, we reverse and remand with instructions for 

the district court to quash the garnishments of the two retirement accounts. 

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