*1 mind, Yirkovsky squarely falls my To America, UNITED STATES of A ground. sentencing this middle
within Appellee, a defendant’s offense may reduce it finds the defen- four levels where level a minimal participant to be dant TAYLOR, Defendant, This reduction “is USSG 3B1.2. crime. who are to cover defendants intended Appellant. Taylor, E. culpable the least those plainly among 01-2874, Nos. 01-3872. Id., a group.” in the conduct of involved comment, (n.4). ease, district In this of Appeals, United States Court Yirkovsky’s conduct сourt considered Eighth Circuit. Ricky to that of co-defendant contrast Submitted: Jan. 2003. accounts, By all Black lived at the Black. search, ac- shortly until before the house Filed: brought them to the quired guns,
house, and demonstrated to others how hand, Yirkov-
guns worked. On the to have control over the
sky never claimed guns, and did not
guns, never touched the Moreover, house. being
like them witness,
according physi- to one Black was likely Yirkovsky
cally abusive Yirkovsky if she had touched
have beaten Yirkovsky’s predi- offense was guns. guns fact that she allowed the
cated on the on this
to remain in her residence. Based
evidence, that the simply agree I cannot Yirkovsky finding court erred
district participant
be a minimal the offenses.
CONCLUSION
Being respect of the view that we are to position in the superior
the district court’s for the reasons
sentencing process and herein, I would affirm the district
stated
court. *2 argued, Minneapolis, Gray,
Peter D. MN, appellant. Erickson, Washington,
Marion E.M. DC (Eileen O’Connor, McLaugh- E. J. Teresa lin, briеf), appellee. on the LOKEN, BYE, RILEY, Before and Judges. Circuit RILEY, Judge. Circuit April This case arises out of an (Northwest) inter- Northwest Airlines and pleader of the United States Taylor (Mary) to determine whether the (IRS) Mary Internal Revenue Service and is entitled to the benefits sponsored employee of three Northwest plans. On cross motions for sum- mary judgment, court ruled the district Mary, generally against for the IRS Mary’s right under a finding (DRO) qualify Texas domestic relations order In December prior federal tax lien. We the IRS filed plan pro- disagree and reverse. Texas, ceeds in where Francis claimed he divorce, resided at the time of the I. BACKGROUND *3 where the 1996, DRO issued. In October case, As is often the the sequence of Minnesota, IRS filed another lien in (Francis) Taylor events is critical. Francis where were administered. pilot worked as a for Northwest from Meanwhile, Mary and Francis attempted During to 1994. employment, his Francis to correct the DRO’s identified deficien- in participated plan, a retirement a stock (1) cies. Among things, the order: and a plan, savings plan by administered did not specify ap- to which it under Northwest ERISA.1 retired Francis (2) plied; did not address how to treat 1994, from in September Northwest at accrued, amounts yet but had not been which time he filed in a Texas state court (3) account; credited to the and Mary, divorce from his wife of more required have Northwest to make an extra month, years. than The thirty following in payment. court, Twice the Texas at 1994, October a tax court concluded that Mary’s request, reformed the DRO ad- not filed tax had returns from dress Northwest’s concerns. Northwest through 1985. On May finally pronounced the DRO a in totaling IRS deficiencies approxi- assessed January 1997. $984,310 mately (including penalties and The district court dismissed Northwest interest) years. for those tax July On action, from the interpleader and the IRS 1995, thе Texas court entered a divorce Mary and left to determine were who was decree and approved a marital settlement plan proceeds. entitled to the The IRS agreement. The agreement provided that claimed its interest in the plan proceeds obligations “to settle all marriage,” time, Mary was first while argued her Mary percent would receive a 90 interest interest had because she both was employee Francis’s Northwest “judgment hen creditor” and a “purchas- proceeds (plan proceeds). in July, Also 6323(a),2 er” under U.S.C. a statute the court a purported entered situations requires certain IRS (QDRO), domestic relations order direct- file notice of its lien to obtain priority. ing the plan administrator to distribute plan proceeds di- district concluded was Mary rectly court, to her. The Texas July neither a purchaser judgment nor a order, jurisdiction retаined to amend or creditor Specifical- section under reform necessary the order as to conform ly, the court Mary determined was not a requirements and qualify as a purchaser her because consideration was full,” “adequate as defined in 26 301.6323(h)-l(f)(3) In (2001) (consid- October informed C.F.R. Mary and Francis that the DRO did eration must have reasonable relationship 1. Employee Security Retirement imposed by Income Act 6321 shall not be section valid as amended, (ERISA), of 1974 as 29 U.S.C. against any purchaser, security holder of a (2000). §§ 1001-1461 interest, lienor, judgment mechanic’s lien creditor until notice thereof which meets 6323(a) "Purchasers, states: (f) requirements of subsection filed been interests, security holders of mechanic’s lien- by Secretary Treasury].” [of ors, lien creditors. The lien community proper- nonparticipant spouse’s acquired prop- value
to true plans). pension interest in ty found Further, district cоurt erty). lien creditor was not turn next to whether We had no evidence she there because lien creditor under became executing her lien perfected 6323(a) time to within sufficient section Texas law. Be- required ment An the IRS.3 IRS have over protec- Mary was not entitled cause penal automatically on the date attaches held the district court tions of section (lien assessed, § 6322 ty is 1,May assessed on IRS tax liens assessment), and is en at timе of arises Mary as of that against effective became creditors of that date forceable as in time and entitled and were first date *4 security any “purchaser,” “holder of except priority. lienor,” interest,” “judg “mechanic’s (1) the Texas Mary argues: appeal, On creditor,” meaning of within the ment lien jurisdiction had exclusive divorce 6323(a). into If the creditor falls section thus, no fed- dispute; there was over this must categories, of then the IRS one these interpleader action and the eral adequate notice to establish provide (2) under Texas communi- proper; not of its hen. See 26 U.S.C. law, Mary had substantial ty property States, 6323(a); 697 § Rodeck v. United plan proceeds even rights property (D.Minn.1988) (as 1511 F.Supp. (3) divorce; purchas- was a she before 6323(a) creditors, pri § will have (4) 6323(a); was a and she er under section if has been filed accor ority only notice section judgmеnt hen creditor 6323(f)). § dance with “judg- Treasury Regulation
A
defines
creditor” as follows:
II.
ment lien
DISCUSSION
a
person
... a
who has obtained
valid
reviews de novo the
This court
in a court
record and of
summary judg
judgment,
grant of
district court’s
States,
jurisdiction,
recovery
for the
competent
151
Mayberry v. United
ment.
(8th Cir.1998).
designated
or for
Initially,
specifically
property
we
F.3d
858
(1)
money.
a
In the case of
arguments:
fed
certain sum
reject Mary’s first two
exist,
judgment
recovery
for the
of a certain
jurisdiction
see 29 U.S.C.
eral
does
1132(a)(3) (civil
judgment lien creditor
may
brought
money,
be
sum of
action
perfected
has
a lien
by fiduciary
enjoin
person
violations of ERISA
who
property
in-
equitable
judgment
under the
on
plan,
appropriate
or to obtain
(2)
relief);
perfect-
not
community property
judgment
volved. A
lien is
and
Texas
lienor,
identity
until
not
her with an interest
ed
does
vest
lien,
and the
plan proceeds.
property
See 29 U.S.C.
1144(а) (ERISA
Ac-
state law
amount of the lien are established.
supersedes
in-
cordingly,
judgment
lien does not
insofar as such law relates to ERISA
Boggs Boggs,
garnishment
v.
520
clude an attachment or
governed plans);
U.S.
ripened
judgment,
until the hen has
into
117
ther
govеrns
Federal
whether a
benefits for beneficiaries
retirement
ployee
by
ment lien created
state law is perfected
including
spouses.
divorced
plans,
of the
6323(a).
The federal
issued,
matter, when the DRO
legal
As a
choate,
perfected,
rule is that a Hen is
or
the owner of 90
longer
Francis was no
lienor,
identity
prop-
“when the
plans.
ERISA
percent of the Northwest
Hen,
erty subject to the
and the
amount
part
this share as
Mary was awаrded
Hen are
estabHshed.” United States v.
and the
Mary,
property,
divorce.
Co.,
Pioneer Am. Ins.
374 U.S.
clearly, only
identified
amount were
(1963)
(quota-
ments it while makes Code, up and ERISA Revenue Internal determination, § See Ho 414(p)(7). inter- that law that any local preempt Co., 857 Raytheon, v. 302 F.3d provisions. gan anti-alienation its fered (8th Cir.2002). deter the administrator Treasury Regulation If aof absence In the eighteen-month approval be- relationship mines within the addressing specifically 6323(a) I a “mod order or 414(p)(2), §§ that the submitted period Code tween it must reference to of that order is general ification” apply decline Treasury Regu- segregated amounts to the alter pre-existing pay in a local 301.6323(h)-l(g), lation, 414(p)(7)(B); see payee. 26 C.F.R. nate QDRO per- Am.-Produc inconsistent with Dirs. Guild Trustees manner Tise, Plans v. 255 рrovisions ERISA. Pension er fection Benefits Cir.2000). situation, (9th In that F.3d 661 whether There remains the doubt, I is not free from although the issue (ac- perfected Mary’s lien conclu with the court’s do not take issue status) QDRO prior IRS quired QDRO “relate that status should sion tax liens in Dallas Coun- filing notice of its entry of the initial domestic back” to the Texas, in late December 1995. ty, 6323(a) order relations 28,1995, judgment lien arose on has conferred because ERISA a domestic Texas divorce cоurt entered segregated plan in the a direct interest awarding her a 90% inter- relations v. Nelson funds at that earlier date.6 Cf. bene- Taylor’s plan ERISA est (8th Cir.2003) Rametter, 322 F.3d 544 plan adminis- fits. Northwest Airlines (for pay purposes, alternative bankruptcy that amended trator determined versions QDRO plan funds acquires ee QDROs, qualified as long of that order date the relations order is on the domestic the tax liens were filed December after Gendreau, entered); v. first Gendreau court 1995. The concludes nonetheless (9th Cir.1997) (same), cert. F.3d Mary’s QDRO-perfected pri- lien has that denied, 1187, 140 118 S.Ct. U.S. ority “Mary’s because (1998). L.Ed.2d 318 to the date of proceeds relates back Ante at 952. [divorce order].” initial assuming But the court has adopted disagree. I mis- principle, correct relation-back that, applied principle to the facts this when a domestic for a case. Unlike the administrator order is relations submitted Indus., determination, Compagnoni, Cooper must Inc. administrator (S.D.Tex.2001), F.Supp.2d a reason- the determination “within make order,” Airlines did not invite and Francis receipt after such able *8 Taylor to submit a modified domestic rela- 414(p)(6)(A)(ii), segre- and must U.S.C. 28, July payable tions order to defects gate plan benefits would be to cure that In My fact interest that was awarded. doubt stems the that the initial such 6. from order, seriously case, relations if defi- priority against domestic for QDRO cient, requirements may satisfy QDRO not lien, I sure whether status tax am not 414(p)(2) correspond §in that to the elements only to the date defi- should back relate that make a lien choate under fed- modified, order was cient domestic relations Here, example, for eral common law. initial, entry way to the of the or all the back 28, 1995, identify July order not to did which I non-choate relations order. need domestic ap- Northwest of the three Airlines resolve that here. not clearly plied thus did define the not 90% 1995, Rather, order. Northwest 414(p)(6)(A)(i). Airlines as In June North- plan administrator issued three letters be- west finally Airlines determined that 8, 1995, tween October 16 and November 8, 1996, January qualified order as a 28,1995, initially that the determining QDRO respect with to Francis Taylor’s domestic relations qualify order did not savings plan and stock plan benefits. QDRO respect with However, of the three April 15, 1996, on plans, advising Taylors that these initially Airlines determined that the Janu- initial determinations would become final ary 8 order did not qualify QDRO as a at the sixty-day conclusion of the appeal respect Taylor’s Francis retire- period provided for the three plans. plan ment benefits. Again, the Taylors Taylors When the appeal, did not North- failed to appeal within the plan’s sixty-day west Airlines issued three final negative appeal period, and that determination be- At point, determinations. that ERISA ex- final. Again, came after the appeal period pressly provides that as alternate expired, Taylors submitted another payee had no further in any segre- modified order, domestic relations entered gated plan benefits. Texas court on August § 414(p)(7)(C). Consistent with the stat- which Northwest Airlines- finally deter- ute, Northwest Airlines then paid seg- QDRO mined to be on January regated benefits for the from July record, On this undisputed I conclude January 1995 to 1996 to Taylor. Francis plan that the QDRO administrator’s deter- point, At that though eighteen-month grant minations did not Mary Taylor a period had expired, Mary’s not claim to a perfected judgment lien perfected judgment hen as of July Taylor’s plan benefits prior to January rejected.7 was finally .1996. As the IRS properly filed notice of notes,
As the court the Texas court en- its liens in late December the federal tered a modified domestic relations order liens have Mary’s judg- over 8,1996, on January plan after the adminis- ment hen under Accordingly, I trator’s final negative determinations. respectfully dissent. Taylors submitted that
Northwest Airlines as administrator. again
Northwest Airlines issued three no-
tices that it had received domestic rela- (one
tions order notice for each plan), is QDRO-deter-
which the first step process.
mination See QDRO 7. The support court has no interpretation its assertion provisions: administrator, period’ during "the '18-month by plan "[t]he which a proce- preserve ‘segregated’- administrator must dures, cannot shorten [the] month amounts ... is the measure of the reason- period.” qualification Ante at 952. The asser- dеtermining able sta- contrary plain language tion tus of an order and in most cases would be an statute, requires which determina- long period unreasonably time to take period,” "within tion a reasonable Labor, review Dep't an order.” U.S. Em- that affected segregated must be *9 Admin., ployee Benefits Sec. ODROs—The Di- made, while the places determination is but Through Qualified vision Pensions Domestic eighteen-month an limit on the adminis- Question Orders, p. Relations 2-12 at duty segregate. trator’s The assertion is <http://www.dol.gov available online at contrary Department also /ebsa/Publications/qdros.html>. of Labor’s