REPORT AND RECOMMENDATION
EILEEN S. WILLETT, Magistrate Judge.
TO THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is the Defendant's Objection (Doc. 145) to the percentage of his wages garnished pursuant to a Writ of Continuing Garnishment (Doc. 142) to pay restitution ordered in the 2nd Amended Judgment entered on January 14, 2016 (Doc. 134). The Government filed its Response to Defendant's Motion Regarding Restitution Garnishment (Doc. 146). The matter was referred to the Magistrate Judge by Senior District Judge Campbell on December 10, 2018 for ruling (Doc. 147). After a stay of the proceedings due to the Federal Government shutdown, a hearing was scheduled and held on March 7, 2019 (Doc. 154). Defendant's Exhibit 1 was admitted into evidence. The Court heard testimony from U.S. Probation Officer Roy Moreno and Cornelius Dozier, IV. Upon conclusion of oral argument, the matter was deemed submitted for decision. The undersigned has considered the testimony of the witnesses, exhibit admitted into evidence, the file, and all information presented.
On April 28, 2014, the Defendant pled guilty to four counts of Armed Bank Robbery, Class B felony offenses, in violation of Title 18, U.S.C. § 2113 (a)(d). (Docs. 91, 92). Judgment (Doc. 107) entered consistent with the plea agreement on October 8, 2014 was amended by Orders issued on November 7, 2014 and January 14, 2016 (Docs. 119, 134). The Court sentenced the Defendant to seventy (70) months at the Bureau of Prisons, followed by five (5) years of supervised release (Doc. 134). The Court ordered the Defendant to pay restitution in the amount of $35,121.43 in equal monthly installments of $150 over a period of sixty-one (61) months to commence sixty (60) days after release from prison to a term of supervised release (Id.). The Defendant was to begin making monthly $150.00 payments toward restitution in January 2018. By November 2018, the Defendant had paid only $200.00 toward restitution owed. That the Defendant failed to pay restitution as ordered is undisputed.
On October 23, 2018, the United States filed an Application for Writ of Garnishment pursuant to 28 U.S.C. § 3205(c). (Doc. 141). On October 24, 2018, the Clerk of Court issued a Writ of Garnishment (Doc. 142). The Writ was served on Defendant's employer, Sunfare, LLC, on October 31, 2018 (Doc. 143). On November 2, 2018, the United States sent a copy of the Writ, the Clerk's Notice of Post Judgment Garnishment and Garnishment Instructions to Judgment Debtor to the Defendant by certified mail (Doc. 143). The Garnishee, Sunfare, LLC, answered the Writ, filled out a Non-Exempt Earnings Statement reflecting the Defendant's actual income, and garnished the Defendant's non-exempt earnings at the rate of twenty-five (25) percent (Doc. 144 at 2). The Defendant received the Answer on November 2, 2018 (Doc. 144 at 3) and filed his Objection to the percentage used to garnish his wages (Doc. 145). The Defendant requests that the Court garnish his wages at the originally ordered amount of $150.00 per month.
United States Probation Officer ("USPO") Moreno testified that the Defendant was aware of his conditions of supervised release, including his restitution payment obligations, and signed the conditions of supervised release in January 2018. Subsequently, USPO Moreno regularly discussed with the Defendant his restitution obligation. USPO Moreno provided the Defendant with budgeting paperwork to assist the Defendant with meeting his obligations. Despite being employed and financially able to pay for essential expenses as well as having a surplus each month, the Defendant nevertheless failed to pay restitution as ordered. After a year of the Defendant's non-compliance with Court ordered restitution payments, USPO Moreno initiated the garnishment process. USPO Moreno testified that garnishment of the Defendant's wages will assist the Defendant in better budgeting for all his financial obligations.
The Defendant testified that he has paid restitution whenever able to do so. He works full-time with the possibility of over-time and aspires to sell hand-made leather bags. The Defendant shared pictures of beautifully designed back-packs and bags that he made for family members while incarcerated. He supports only himself. He is concerned that paying restitution at the rate of twenty-five (25) percent of his non-exempt earnings may "put him in a bind" as he rebuilds his life. Specifically, the Defendant was concerned regarding the possibility of any future car repair expenses.
The Court has reviewed the financial expense information contained in Exhibit 1. The Court finds that the Defendant's monthly expenses are modest, reflecting an ability to live within his means with appropriate budgeting. The Defendant's earnings exceed his monthly expenses. The Court finds that the Defendant can pay restitution at the current garnished rate of twenty-five (25) percent of his non-exempt earnings.
By statute, the Defendant's restitution order created a "lien in favor of the United States on all property and rights to property of [Defendant]." 18 U.S.C.§ 3613. The restitution order "may be enforced by the United States in the same manner that it recovers fines or `by all other available and reasonable means.'" United States v. Hester, No. 10CR2967 BTM, 2016 WL 1007335, at *2 (S. D. Cal. Mar. 14, 2016) (quoting 18 U.S.C. § 3664(m)(1)(A)(ii)). The United States "may enforce a restitution judgment `in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law.'" United States v. Berger, 574 F.3d 1202, 1204 (9th Cir. 2009); 18 U.S.C. § 3613(a). The Federal Debt Collection Procedures Act provides explicit guidance regarding the use of writs of garnishment to recover a judgment on a debt. 28 U.S.C. § 3205.
The existence of a periodic payment provision in this Court's restitution order does not preclude the United States from later seeking garnishment of the Defendant's wages. See United States v. Webb, 2014 WL 4371276 (D. Ariz. Sept. 4, 2014) ("Despite the existence of a payment schedule for restitution in a judgment, the United States may pursue immediate or adjusted enforcement of restitution as long as the judgment contains nothing to the contrary."). Here, the United States waited a significant period before pursuing available statutory remedies under the law. Nothing in the Court's judgment prohibits the United States from pursuing this garnishment.
Prior to an Answer having been filed, the Defendant may request a garnishment hearing on the following grounds: (i) the probable validity of any claim of exemption by the judgment debtor, (ii) compliance with any statutory requirement for the issuance of the garnishment, or (iii) certain circumstances related to a default judgment which are not applicable to this case. 28 U.S.C. § 3202(d). The garnishment statute also contains a provision that allows the judgment debtor, within twenty (20) days after receipt of the answer, to object to the answer and request a hearing. 28 U.S.C. § 3205(c)(5). To the extent the Defendant's Objection (Doc. 145) can be construed as a request for hearing, the limitations set forth in § 3202(d) apply to the Defendant's request.
At the hearing, the Defendant did not dispute the United State's compliance with statutory procedures for obtaining the garnishment. Nor did the Defendant assert a claim to an exemption regarding the non-exempt portion of his wages. This is not a default judgment case. The Defendant simply contested the garnishment based on financial hardship for which he provided no supporting legal authority. The undersigned finds that the Defendant has failed to meet his burden of proof pursuant to 28 U.S.C. § 3202(d).
The Court retains the discretion to modify or suspend a writ of garnishment based on the circumstances of the individual garnishee under 28 U.S.C.§ 3013. United States v. Ogburn, 499 F.Supp.2d 28, 31 (D. D.C. 2007). Based upon the information presented by the parties in this case, however, the undersigned finds that the twenty-five (25) percent garnishment of Defendant's non-exempt earnings is entirely reasonable and appropriate. The Defendant's claim of financial hardship is not supported by the record in this case.
For the reasons set forth herein,
IT IS RECOMMENDED that the Court deny the Defendant's Objection which requests the Court to quash, modify, or suspend the garnishment of twenty-five (25) percent of his non-exempt wages (Doc. 145).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
