United States District Court, W.D. Texas, San Antonio Division
Honorable Chief United States District Judge Orlando L.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
ELIZABETH S. ("BETS Y") CHESTNEY UNITED STATES
Report and Recommendation arises out of a writ of garnishment
issued by this Court to garnish Defendant's wages from
his current employer to satisfy the remaining balance of
Defendant's restitution debt stemming from criminal
proceedings in the Southern District of Texas. Defendant has
filed various exemptions to the writ and a request for a
hearing, and the District Court referred this matter to a
United States Magistrate Judge for consideration and a
hearing, if necessary, and for a report and recommendation
thereon [#11]. The undersigned has authority to enter this
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Having reviewed the various filings and the relevant law, the
undersigned concludes that a hearing is not necessary and
recommends that the Court deny the requested exemptions.
December 15, 2014, Defendant was sentenced by the Southern
District to four years of probation and ordered to pay $33,
166.00 in restitution under the Mandatory Victim Restitution
Act (“MVRA”), 18 U.S.C. §§ 3663A-3664,
after pleading guilty to threatening communications in
violation of 18 U.S.C. § 844(e). (Judgment [#1] at 2-5.)
A lien in favor of the United States arose upon
Defendant's sentence and was automatically and
statutorily imposed on all of Defendant's property for
collection of the outstanding restitution. See 18 U.S.C.
§ 3613(c). As of April 16, 2019, the principal balance
of Defendant's restitution debt was $30, 911.00.
criminal case was transferred to this Court on November 13,
2017 for purposes of exercising jurisdiction over
Defendant's probation or supervised release. The United
States thereafter initiated an enforcement proceeding
pursuant to the Federal Debt Collection Practices Act
(“FDCPA”), 28 U.S.C. §§ 3001-3308, to
collect on Defendant's restitution debt by garnishing
Defendant's wages from his employer SNS Erectors, Inc.
(“the garnishee”). The District Court granted the
application for the writ and ordered it served on the
garnishee SNS Erectors [#4]. SNS Erectors filed its answer
admitting that Defendant was an employee; that he is paid
weekly; that his disposable earnings after withholdings for
taxes, child support, and union dues are deducted is $1,
350.53; and that the amount to be garnished from his weekly
pay is 25% of this disposable income or $337.63 [#7].
Defendant filed a pro se response contesting the garnishment
rate, claiming various statutory exemptions, and requesting a
hearing [#9]. The United States filed a reply in opposition
[#10], asking the Court to reject Defendant's claimed
exemptions without a hearing. For the reasons stated herein,
the claimed exemptions should be denied.
United States may enforce a judgment imposing a criminal fine
or restitution order “in accordance with the practices
and procedures for the enforcement of a civil judgment under
Federal law or State law.” 18 U.S.C. § 3613(a)
& (f). One such procedure is a writ of garnishment under
the FDCPA, 28 U.S.C. §§ 3001-3308. This statute
provides, in pertinent part:
A court may issue a writ of garnishment against property
(including nonexempt disposable earnings) in which the debtor
has a substantial nonexempt interest and which is in the
possession, custody or control of a person other than the
debtor, in order to satisfy the judgment against the debtor.
Id. § 3205(a). “Nonexempt disposable
earnings” means 25 percent of disposable earnings,
subject to section 303 of the Consumer Credit Protection Act.
28 U.S.C.A. § 3002(9).
property is exempt from garnishment. This includes
“property exempt from levy for taxes pursuant to
section 6334(a)(1), (2), (3), (4), (5), (6), (7), (8), (10)
and (12) of the Internal Revenue Code of 1986.” 18
U.S.C. § 3613(a)(1). The party filing an objection based
on one of these statutory exemptions has the burden of
proving the grounds for any claimed exemption. 28 U.S.C.
§ 3205(c)(5); see also United States v. Kemp, No.
3-96-CR-300-P, 2002 WL 31548868 at *2 (N.D. Tex. Nov. 12,
2002). Defendant invokes the statutory exemptions listed at
(a)(1), (2), (5), and (8) of the Internal Revenue Code and
maintains that 25% garnishment of his wages will cause him a
financial hardship. (Claim for Exemption Form [#9] at 2-3.)
The sections of the Internal Revenue Code invoked by
Defendant provide, in pertinent part:
There shall be exempt from levy:
(1) Wearing apparel and school books.-Such items of wearing
apparel and such school books as are necessary for the
taxpayer or for members of his family;
(2) Fuel, provisions, furniture, and personal effects.-So
much of the fuel, provisions, furniture, and personal effects
in the taxpayer's household, and of the arms for personal
use, livestock, and poultry of ...