Case: 14-11440   Date Filed: 03/27/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11440
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:09-cr-20407-PCH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

GARRY SOUFFRANT,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (March 27, 2015)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      In United States v. Souffrant, 517 F. App’x 803 (11th Cir. 2013), we

affirmed appellant Garry Souffrant’s convictions on 46 counts of an indictment

charging a “multi-million dollar mortgage fraud conspiracy” and related

substantive offenses that occurred in South Florida in 2009. We also affirmed

Souffront’s sentences, which included an order, entered pursuant to the Mandatory

Victims Restitution Act of 1996 (“MVRA”), Pub. L. No. 104-132, 110 Stat. 1227,

codified at 18 U.S.C. § 3663A (2006), requiring him to pay in excess of $4.8

million in restitution to the victims of his offenses.

      On October 19, 2011, the District Court, on the Government’s application

and pursuant to 28 U.S.C. § 3205(a), issued a writ of garnishment to the City of

Boca Raton Police and Firefighters’ Retirement System (the “Retirement System”)

in an effort to satisfy, at least in part, the restitution ordered. The Retirement

System, in its response to the writ, stated that Souffrant’s employee pension fund

account had accumulated $46,962,1 but, according to Fla. Stat. 175.241, it was not

subject to garnishment.2 Souffrant, responding, claimed that the sums in the



      1
          $41,788 in Souffrant’s contributions, the balance in interest earned.
      2
          Fla. Stat. 175.241, Exemption from tax and execution, states:

      For any municipality, special fire control district, chapter plan, local law
      municipality, local law special fire control district, or local law plan under this
      chapter, the pensions, annuities, or other benefits accrued or accruing to any
      person under any chapter plan or local law plan under the provisions of this
      chapter and the accumulated contributions and the cash securities in the funds
      created under this chapter are hereby exempted from any state, county, or
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pension fund account belonged to the Retirement System. The District Court

found no merit in either response. In an order issued on March 24, 2014, Doc. 348,

the court adopted a Magistrate Judge’s order, Doc. 333, directing the Retirement

System to pay $46,962 into the District Court’s registry. Souffrant appeals the

order.

         Souffrant argues that the pension fund did not belong to him and thus is not

subject to garnishment. The fund is, instead, made up of potential future income,

which the District Court expressly addressed in its restitution order. He also

argues that seizing the funds may have harmed the rights of his victims by

diminishing a potential long-term flow of income. 3

         Under the MVRA, restitution is mandatory for certain crimes, including

offenses committed by fraud, such as those of which Souffrant had been convicted.

18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). The government may enforce a restitution

order through the procedures available for the enforcement of a civil judgment.

See 

(f) (“[A]ll provisions of this section are available to




         municipal tax and shall not be subject to execution or attachment or to any legal
         process whatsoever, and shall be unassignable.

         3
          For this reason, Souffrant argues that the court erred in not affording the victims an
evidentiary hearing. Souffrant lacked standing to seek an evidentiary hearing on behalf of the
victims; hence, his argument is meritless.
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the United States for the enforcement of an order of restitution.”). Among those

available is a writ of garnishment. 28 U.S.C. § 3205.

       A restitution order issued following a conviction for an offense committed

by fraud is a lien in favor of the government on all property and rights to property

of the defendant---as if the defendant’s liability were a tax liability assessed under

the Internal Revenue Code, see 18 U.S.C. §§ 3613(c), 3663A(c)(1)(A)(ii)---except

certain property that is exempt from levy for taxes pursuant to § 6334(a)(1)-(8),

(10), and (12) of the Internal Revenue Code. See 

(a)(1), (f). The Federal

Debt Collection Procedures Act of 1990, Pub. L. No. 101-647, 104 Stat. 4789,

4933 (Nov. 29, 1990), codified at 28 U.S.C. § 3001 et seq., preempts state

exemptions, 28 U.S.C. § 3003(d), such as the one provided . Therefore, only

property rights exempted from levy for taxes are exempt from garnishment to

satisfy a restitution order. See 18 U.S.C. § 3613(a)(1), (2).

       Under the Internal Revenue Code, “all property and rights to property” other

than certain exempt property4 may be levied to collect a tax liability. 26 U.S.C.

§ 6331(a). With the exception of exempt property, the broad language indicates

Congress’s intent to “reach every interest in property that a taxpayer might have.”


       4
          Pension and annuity benefits exempt under the Internal Revenue Code include pension
or annuity payments under the Railroad Retirement Act, benefits under the Railroad
Unemployment Insurance Act, and certain pension payments and annuities for members of the
Armed Forces. 26 U.S.C. § 6334(a)(6).


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United States v. Nat’l Bank of Commerce, 

, 719-20, 

,

2924, 

(1989).

      We find no error in the District Court’s ordering the garnishment of

Souffrant’s pension plan funds. Under the MVRA, the Government could enforce

the restitution order against the same property interests it could reach if Souffrant

owed a tax deficiency. Because his pension plan is not one exempt from levy for a

tax deficiency, a writ of garnishment could reach his contingent interest in the plan

and cash it out plan because Souffrant was entitled to do so.

      AFFIRMED.




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