United States v. Canterbury ( 2021 )

Case: 20-30044 Document: 00515812713 Page: 1 Date Filed: 04/07/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 7, 2021
No. 20-30044
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Ronald Ray Cardwell,
Defendant,
Debra Anne Canterbury, Appearing and moving for reconsideration of
Order on Motion to Foreclose Judgment Lien and Private Sale of Property as to
Ronald Ray Cardwell,
Movant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:05-CR-30028-1
USDC No. 3:05-CR-30028-2
Before Wiener, Southwick, and Duncan, Circuit Judges.
Case: 20-30044 Document: 00515812713 Page: 2 Date Filed: 04/07/2021
No. 20-30044
Per Curiam:*
In 2006, Ronald Ray Cardwell, the former husband of Debra Anne
Canterbury, pleaded guilty to bank fraud and was sentenced to four months
of imprisonment, three years of supervised release, and restitution in the
amount of $162,440.78. In March 2019, the Government filed a motion to
foreclose a judgment lien and for private sale of real property located in St.
Tammany Parish, Louisiana, to collect the remaining balance of the
restitution owed by Cardwell. In October 2019, after the Government
obtained Canterbury’s current address, it served her with its supplemental
motion to foreclose. The district court initially granted the motion.
Canterbury filed a response opposing the Government’s motion. The
district court subsequently withdrew its order granting the motion, allowed
the parties to file pleadings, and held a hearing at which the interested parties,
including Canterbury, appeared. The district court granted the
Government’s motion. Canterbury timely appealed.
Canterbury argues the district court erred in granting the
Government’s motion. We review orders issued to enforce a restitution
order for abuse of discretion. United States v. Clayton, 613 F.3d 592, 595 (5th
Cir. 2010) (concerning garnishment order). A district court abuses its
discretion if its decision is based on an erroneous determination of the law.
United States v. Elashi, 789 F.3d 547, 548 (5th Cir. 2015). Questions of law,
such as an issue of statutory interpretation, are reviewed de novo. Id. We
review factual findings for clear error. United States v. Tilford, 810 F.3d 370,
371 (5th Cir. 2016).
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
2
Case: 20-30044 Document: 00515812713 Page: 3 Date Filed: 04/07/2021
No. 20-30044
The district court did not abuse its discretion in granting the
Government’s motion to enforce the restitution judgment against Cardwell
pursuant to the Mandatory Victims Restitution Act (MVRA). See United
States v. Phillips, 303 F.3d 548, 550-51 (5th Cir. 2002) (citing 18 U.S.C.
§ 3664(m)(1)(A)(i)-(ii)). A federal criminal restitution order may be
enforced like a fine, § 3664(m)(1)(A), and the Government may “enforce a
judgment imposing a fine 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); see Phillips, 303 F.3d at 551; see also Elashi, 789 F.3d at 549
(stating that under § 3613(c) of the MVRA “federal criminal debts are to be
treated in the same manner as federal tax liens”). Foreclosing the lien upon
the property was a valid method available to the Government. See 26 U.S.C.
§ 7403(c) (providing that district court may order sale of property to satisfy
tax lien); 28 U.S.C. § 2001 (providing procedure for sale of foreclosed
property).
“[T]he law of the debtor’s domicile state defines the property
interests to which a judgment lien may attach.” United States v. Berry, 951
F.3d 632, 637 (5th Cir. 2020). In 1991, Cardwell and Canterbury were
married and lived in Louisiana; they entered into a matrimonial agreement
establishing a separate property regime. They signed a contract terminating
that agreement, effective January 1, 2005, establishing a community property
regime. They acquired the real property at issue in 2012. They divorced in
2015. Although the judgment of divorce terminated the community property
regime retroactively to the date that the petition for divorce was filed, see
Warner v. Warner, 859 So. 2d 146, 149 (La. Ct. App. 2003), they continued
to be co-owners of the former community property after the termination of
the community because the community was not finally partitioned. See
Robinson v. Robinson, 778 So. 2d 1105, 1118 (La. 2001). Given the sequence
of events, the property of the former community could be seized by the
3
Case: 20-30044 Document: 00515812713 Page: 4 Date Filed: 04/07/2021
No. 20-30044
Government to satisfy Cardwell’s restitution obligation, whether it was a
separate or a community obligation. See La. Civil Code art. 2345; La.
Civil Code art. 2357; Finance One of Houma, L.L.C. v. Barton, 769 So. 2d
739, 741 (La. Ct. App. 2000). Therefore, the district court did not abuse its
discretion in granting the Government’s motion to foreclose the judgment
lien and for private sale of the property. See Elashi, 789 F.3d at 548; Clayton,
613 F.3d at 595. In addition, the district court found Canterbury failed to
show she did not benefit from Cardwell’s actions that incurred the obligation,
and she has not shown the district court’s finding was clearly erroneous. See
Tilford, 810 F.3d at 371. Also, Canterbury does not contend, much less show,
that the foreclosed property falls within any statutory exemptions from levy.
See 26 U.S.C. § 6334(a)(1)-(8), (10), (12), cited in § 3613(a)(1).
Next, Canterbury contends that she did not receive proper notice of
the Government’s motion to foreclose when it was filed in March 2019.
However, she received notice when the Government sent its supplemental
motion to her by regular first-class mail in October 2019. The district court
withdrew its order granting the Government’s motion, considered the
pleadings filed by Canterbury and the Government, and held a hearing
concerning the motion at which Canterbury was allowed to present her
arguments in opposition to the motion. Because Canterbury received actual
notice of the Government’s supplemental motion by mail and was given an
opportunity to present her objections to the Government’s motion before the
district court made its decision, she has not shown that her due process rights
were violated. See United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,
272 (2010); see also In re Sam, 894 F.2d 778, 782 (5th Cir. 1990).
Finally, Canterbury asserts that the district court erred in denying her
request to review the audiotape of the hearing on the Government’s motion.
See In re Pratt, 511 F.3d 483, 484 (5th Cir. 2007). Her request was related to
her allegations that the transcript was incomplete. However, as the
4
Case: 20-30044 Document: 00515812713 Page: 5 Date Filed: 04/07/2021
No. 20-30044
Government contends, the alleged transcript omissions she complains about
on appeal did not affect her substantial rights. See Fed. R. Crim. P. 52(a);
Fed. R. Civ. P. 61. The record does not indicate that the district court
was biased against Canterbury in any way, and the allegedly omitted
statements would not affect that conclusion or otherwise undermine the
district court’s judgment. See Liteky v. United States, 510 U.S. 540, 555
(1994).
AFFIRMED.
5