United States v. Gaudet

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 29, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-31184
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY J. GAUDET,
Defendant-Appellant,
AUDRY GAUDET,
Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:89-CR-523-K
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Stanley J. Gaudet and Audry Gaudet appeal the district court’s
order of garnishment requiring the Sheet Metal Workers’ Local
Unions and Councils (LUCPF) to remit to the Government any property
in its possession up to the amount of the restitution order entered
in this criminal case. The notice of appeal was timely filed.
FED. R. APP. P. 4(a)(1)(B).
The Government contends that the court should not consider the
Gaudets’s substantive issues because they were not asserted in the
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
No. 04-31184
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district court. We review an “unpreserved error in a civil case
using the plain-error standard of review.” Crawford v. Falcon
Drilling Co., Inc., 131 F.3d 1120, 1123 (5th Cir. 1997). Under the
plain-error standard, “‘there must be an error that is plain and
that affects substantial rights.’” Id. (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)). If such error is present, this
court has discretion to correct the forfeited error, discretion
that should not be exercised “‘unless the error seriously affects
the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting Olano).
The Gaudets contend that the pension benefits held by the
LUCPF are exempt from seizure under the anti-alienation provision
of ERISA and that the garnishment order is contrary to the Supreme
Court’s decision in Guidry v. Sheet Metal Workers Nat’l Pension
Fund, 493 U.S. 365, 376 (1990), and this court’s decision in
Herberger v. Shanbaum, 897 F.2d 801, 804 (5th Cir. 1990). The
Gaudets contend that the district court’s decision constitutes an
improper retroactive application of the 1997 amendment to 29 U.S.C.
§ 1056(d) legislatively overruling Guidry. See United States v.
Irving, 432 F.3d 401, 417 (2d Cir. 2005).
In issuing the garnishment order, the district court noted
that this court had determined repeatedly that the restitution
order was lawful. The district court noted that the Gaudets had
not responded adequately to its order requiring them to demonstrate
that the pension benefits were exempt from seizure, an issue on
No. 04-31184
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which they bore the burden of persuasion. See 28 U.S.C.
§ 3014(b)(2). The Gaudets have not shown that the district court’s
decision was plainly erroneous. See Crawford, 131 F.3d at 1123.
The Gaudets contend also that the debt underlying the
restitution order has been extinguished because a bonding company
has compensated the union and the pension funds for their losses.
There is no support in the record for this argument. Issues raised
for the first time on appeal that involve factual determinations
that could have been resolved in the district court generally do
not rise to the level of plain error. Robertson v. Plano City of
Texas, 70 F.3d 21, 23 (5th Cir. 1995).
The Gaudets contend also that Audry Gaudet has a community
property interest in the pension benefits. In issuing the
garnishment order, the district court noted that Audry Gaudet’s
interest in the pension benefits had been litigated in a civil
action filed by the Gaudets and had been rejected on the basis that
Audry Gaudet’s interest was contingent upon her husband’s interest.
The district court noted also that the Government’s lien created by
the filing of the restitution order primed the lien established by
the filing of a purported qualified domestic relations order. The
Gaudets contend only that, as a matter of state law, Audry Gaudet’s
community property interest vested at the moment of the acquisition
of the property. The Gaudets have not shown that the district
court plainly erred. See Crawford, 131 F.3d at 1123.
No. 04-31184
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Moreover, even if we were to determine that the district court
plainly erred, we would not exercise our discretion to correct the
error. Any error on the part of the district court in ordering the
garnishment of the union pension did not seriously affect the
fairness, integrity or public reputation of judicial proceedings.
See id. The district court’s order is
AFFIRMED.