United States v. William C. Pugh

Sep 3, 2003
03-1125
Versions:75 F. App'x 546

Michael E. Ridgway, Danelle Daugherty, U.S. Attorney‘s Office, Sioux Falls, SD, for Plaintiff-Appellee.

Alan Ray Rick, Moorhead, MN, Timothy Joseph Langley, Federal Public Defender‘s Office, Sioux Falls, SD, for Defendant-Appellant.

Before RILEY, FAGG, and BOWMAN, Circuit Judges.

PER CURIAM.

Alan Ray Rick appeals from the district court‘s* imposition of sentence following the revocation of his supervised release. Having reviewed the record and the parties’ briefs, we conclude the district court did not abuse its discretion in imposing community confinement as a condition of Rick‘s supervised release under the catch-all provision of 18 U.S.C. § 3583(d) (court may order, within certain parameters, “any other condition it considers to be appropriate“). See United States v. Kent, 209 F.3d 1073, 1075 (8th Cir. 2000) (standard of review).

Accordingly, we affirm. See 8th Cir. R. 47B.

A true copy.

Mary Trippler, Mark D. Larsen, Minneapolis, MN, for Plaintiff-Appellee.

William C. Pugh, Edina, MN, for Defendant-Appellant.

Before BYE, BOWMAN, and MELLOY, Circuit Judges.

PER CURIAM.

As part of William Pugh‘s criminal sentence, he was ordered to make restitution to an insurance company. Pursuant to the Federal Debt Collection Procedures Act (FDCPA), the government applied for a writ of garnishment to collect on the restitution order, claiming that Pugh‘s “judgment debt was $1,130,977.54 in principal, plus interest, costs and pursuant to 28 U.S.C. § 3011, a surcharge of 10% of the total debt due.” The magistrate judge issued the writ. Pugh objected to the garnishment, disputing the debt and requesting a hearing. The magistrate judge summarily overruled his objection and denied his request for a hearing. Pugh appeals.

The government now moves to supplement the record on appeal: after obtaining the writ, the government learned that Pugh and others had made partial restitution payments of $725,827.56 directly to the victim insurance company. Because the district court had an incomplete picture of Pugh‘s restitution debt, we grant the government‘s motion to supplement. See Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993) (interest of justice required supplementing record on appeal where misrepresentations left district court with incomplete picture and prevented court from conducting full and fair analysis).

Under FDCPA, a judgment debtor may move to quash an enforcement order, like the garnishment at issue below. Upon the filing of such a motion, the district court must conduct a hearing as soon as practicable, but the issues at such a hearing are limited to the validity of any claim of exemption and the government‘s compliance with FDCPA‘s statutory requirements. See 28 U.S.C. § 3202(d).

Having carefully reviewed the record and the appellate submissions, and in light of the new information provided by the government, we conclude that the amount of restitution owed is in question. The magistrate judge erred in denying Pugh the hearing mandated by FDCPA. On remand, the hearing will be limited to what payments Pugh has made on the restitution debt, any exemptions to which he might be entitled, and the government‘s compliance with FDCPA; the hearing will not be an opportunity for Pugh to challenge the validity of the underlying conviction or restitution obligation.

Accordingly, we remand for further proceedings consistent with this opinion.

Notes

*
The Honorable Lawrence L. Piersol, Chief Judge, United States District Court for the District of South Dakota.