U.S. v. Gianelli

• Decision Date: 17 September 2008
• Docket Number: No. 07-10233.,07-10233.
• Citation: 543 F.3d 1178
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. GIANELLI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

543 F.3d 1178

UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. GIANELLI, Defendant-Appellant.

No. 07-10233.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2008.

Filed September 17, 2008.

Patrick James Sullivan, Oakland, CA, for the defendant-appellant.

Richard A. Friedman, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; Ronald M. Whyte, District Judge, Presiding. D.C. No. CR-86-20083-RMW.

Before: WILLIAM C. CANBY, JR., DAVID R. THOMPSON, and MILAN D. SMITH, JR., Circuit Judges.

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 The opinion filed March 20, 2008, and published as United States v. Gianelli, 519 F.3d 962 (9th Cir. 2008), is withdrawn. In place of that withdrawn opinion, a new opinion is filed with this Order.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, 110 S.Ct. 1979, 109 L.Ed.2d 408 (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 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 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.Appx. 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, 110 S.Ct. 1979. 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 ... [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

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. 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).

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).

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 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...