United States v. Charging Crow ( 2022 )

Appellate Case: 22-8011 Document: 010110776192 Date Filed: 12/01/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 1, 2022
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Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-8011
(D.C. No. 2:20-CR-00122-SWS-1)
MARQUES ALAN CHARGING CROW, (D. Wyo.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before McHUGH, MORITZ, and CARSON, Circuit Judges.
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Federal inmate Marques Alan Charging Crow, pro se, appeals the district
court’s order authorizing payment of restitution from his inmate trust account.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Mr. Charging Crow was convicted of several federal offenses in 2020. He was
sentenced to 456 months in prison and ordered to pay $8478.85 in restitution. On
November 4, 2021, the United States filed a “Motion To Authorize Payment From
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Appellate Case: 22-8011 Document: 010110776192 Date Filed: 12/01/2022 Page: 2
Inmate Trust Account” requesting that the district court enter an order authorizing the
Bureau of Prisons “to turnover to the Clerk of Court $2,000.00 held in [Mr. Charging
Crow’s] inmate trust account as payment toward the Court ordered restitution.”
R., Vol. 1 at 48. That same day, the United States mailed a copy of the motion to
Mr. Charging Crow, first-class postage prepaid.
Under Local Rule 7.1(b)(1)(B), Mr. Charging Crow had “fourteen (14) days
after the filing of the motion to file a written response . . . in opposition to the
motion.” The Rule further provides that “[t]he Court may, in its discretion, consider
the failure of a responding party to file a timely response as a confession of the
motion.” Id.Having received no response, on November 29, 2021, the district court entered
an order authorizing the payment. But on February 18, 2022, Mr. Charging Crow
filed a response in opposition to the motion to authorize payment. He alleged that the
source of the funds was an annuity payment from the Eastern Shoshone Native
American tribe, which “[is] exempt from seizure,” and asked the court “deny the
motion [for authorization] and restore the funds immediately.” R., Vol. 1 at 56. The
court denied the motion the same day it was filed. In addition to noting the belated
response, the court rejected Mr. Charging Crow’s “contention [on the merits] that his
Eastern Shoshone annuity payments are exempt from seizure to pay back restitution.”
Id. at 58-59 (footnote and internal quotation marks omitted). Mr. Charging Crow
appeals.
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Appellate Case: 22-8011 Document: 010110776192 Date Filed: 12/01/2022 Page: 3
“We review the district court’s interpretation of the statute de novo and its
decision to authorize payment under [18 U.S.C.] § 3664(n) for abuse of discretion.”
United States v. Kidd, 23 F.4th 781, 785 (8th Cir. 2022).
Mr. Charging Crow’s brief on appeal contains two arguments: (1) “[u]nder
26 U.S.C. § 6334(a)(6), the funds were exempt from collection because they were
dispersed from a Native American annuity fund”; and (2) he was denied due process
when the court “encumber[ed] . . . the funds without first notifying [him] and
providing an opportunity to be heard.” Aplt. Opening Br. at 3. He is mistaken.
“[A]n order of restitution . . . is a lien in favor of the United States on all
property and rights to property of the person [ordered to pay restitution] as if the
liability of the person . . . were a liability for a tax assessed under the Internal
Revenue Code.” 18 U.S.C. § 3613(c). To be sure, the Internal Revenue Code
exempts certain property from levy, including
[a]nnuity or pension payments under the Railroad Retirement Act, benefits
under the Railroad Unemployment Insurance Act, special pension
payments received by a person whose name has been entered on the Army,
Navy, Air Force, and Coast Guard Medal of Honor roll . . ., and annuities
based on retired or retainer pay under chapter 73 of title 10 of the United
States Code.
26 U.S.C. § 6334(a)(6). But none of the exemptions include annuity payments from
a Native American tribe.
There is also no merit to Mr. Charging Crow’s argument that he was denied
due process. The United States served a copy of its motion on him, and the district
court promptly considered his belated response in opposition and entered its order.
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Appellate Case: 22-8011 Document: 010110776192 Date Filed: 12/01/2022 Page: 4
Nothing more was required. See Elliott v. Martinez, 675 F.3d 1241, 1245 (10th Cir.
2012) (“The core of due process is the right to notice and a meaningful opportunity to
be heard.” (internal quotation marks omitted)).
The judgment of the district court is affirmed. We grant Mr. Charging Crow’s
motion for leave to proceed on appeal without prepayment of costs and fees.
Entered for the Court
Joel M. Carson III
Circuit Judge
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