United States v. Witham

United States Court of Appeals
For the First Circuit

No. 10-1814

UNITED STATES,

Appellant,

v.

WAYNE WITHAM,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Thompson, Circuit Judges.

Seth R. Aframe, Assistant United States Attorney, John P.
Kacavas, United States Attorney, and Michael T. McCormack,
Assistant United States Attorney, on brief for appellant.
Wayne Witham, pro se.

June 8, 2011
 LYNCH, Chief Judge. This case raises a narrow but

important question. In light of the Mandatory Victim Restitution

Act of 1996 (MVRA), Pub. L. No. 104-132, §§ 201-211, may the United

States meet its obligation to enforce an order of restitution to a

private-party victim of a crime by use of the Federal Debt

Collection Procedure Act (FDCPA), 28 U.S.C. §§ 3001-3308, including

its garnishment procedure, § 3205?

In a decision that predated the applicability of the

MVRA, United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997),

this court held that the government could not use the FDCPA to

enforce a private-victim restitution order because such restitution

was not a debt "owing to the United States" under the FDCPA. See

28 U.S.C. §§ 3001(a), (c); 3002(3); Bongiorno, 106 F.3d at 1036-40;

see also United States v. Rostoff, 164 F.3d 63, 69 (1st Cir. 1999);

United States v. Timilty, 148 F.3d 1, 5 (1st Cir. 1998).

The question not answered in Bongiorno and now before us

is whether the MVRA has since given the United States authority to

use the FDCPA's collection procedures to enforce restitution orders

for the benefit of private victims. The district court, finding

that our prior precedent still controlled the question, held that

the United States had no such authority. We reverse, holding that

the MVRA authorizes the United States to invoke FDCPA procedures to

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enforce all restitution orders, including those in favor of

private-party victims.1

I. Factual Background

The basic facts underlying the narrow legal question we

face are not disputed.

On January 26, 2000, appellee Wayne Witham was indicted

for his part in a conspiracy that, from 1995 to 1997, stole

computer parts and memory from Digital Equipment Corporation and

sold them to a co-conspirator's business, which sold used computer

systems and components. The conspiracy's three couriers, including

Witham, received payment for the stolen goods by check, with the

payments split among several checks when the total payment exceeded

$10,000, the amount that would trigger financial institutions'

reporting requirements under the Bank Secrecy Act. See 31 U.S.C.

§ 5313(a); 31 C.F.R. 1010.311.

Witham pled guilty on May 23, 2000 to one count of

conspiring to defraud the United States and to structure

transactions to evade reporting requirements, 18 U.S.C. § 371; one

count of conspiring to receive and transport stolen property in

interstate commerce, 18 U.S.C. § 371; nine counts of both

structuring and aiding and abetting in structuring individual check

transactions to evade reporting requirements, 31 U.S.C.

1
We include in the term "victim" persons "other than the
victim of the offense" where a court has ordered restitution to
such a person under 18 U.S.C. § 3663A(a)(3).

-3-
§ 5324(a)(3); 18 U.S.C. § 2; and two counts of tax evasion stemming

from his failure to report his illegal income, 26 U.S.C. § 7201.

His plea agreement included a statement that "the Court may also

order the defendant to make restitution under 18 U.S.C. § 3663 to

victims included in the count(s) to which he agrees to plead

guilty." On October 30, 2000, Witham was sentenced to thirty-three

months imprisonment, followed by thirty-six months supervised

release. He was also ordered to pay, jointly and severally with

one co-conspirator, restitution of $800,000 plus 6.241% interest.

The restitution was ordered paid to Compaq, which had acquired the

victim, Digital Equipment Corporation, in 1998.

Under the terms of an agreement with the probation

office, Witham was supposed to pay $200 each month toward his

restitution obligation. His first payment was scheduled for

January 5, 2004. He "got behind" on those payments, and made only

eighteen payments sporadically over the next several years.

Further, he made only one of those eighteen payments--of $100 on

May 14, 2008--after his supervised release period ended in July

2007.

Witham works seasonally as a contract union millwright

for approximately ten months per year, collecting unemployment

during the other months. The district court found that he could

expect an income ranging between $50,000 and $60,000 a year, though

he earned significantly more, $91,000, in 2009. On September 8,

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2009, pursuant to the FDCPA's garnishment procedure, 28 U.S.C.

§ 3205, the United States filed an application for a writ of

continuing garnishment ordering Witham's employer, Seimens

Generation Services, to garnish 25% of Witham's disposable (i.e.,

after-tax) earnings.2 The writ was issued by the Clerk of Court

the next day.

At a November 30, 2009 hearing on the garnishment, the

court reduced the garnishment to $200 per month, pending a

deposition of Witham to determine his earnings and expenses, which

Witham had not accurately reported to the district court. After

the deposition and a second hearing, the district court ordered on

January 28, 2010 that $200 a month continue to be garnished,

stating that this amount was "fair, reasonable, and practical" and

balanced repaying the victim with the "defendant's rehabilitation,

the need for him to be self-sufficient, and his obligations of

support" for his adult children. United States v. Witham, No. 00-

CR-17-2, 2010 WL 2465355, at *1 (D.N.H. Jan. 28, 2010).

2
Under the statute, "[e]arnings" includes wages and
salary, 28 U.S.C. § 3002(6), and "'[d]isposable earnings' means
that part of earnings remaining after all deductions required by
law have been withheld," id. § 3002(5). The 25% figure is the
maximum allowed by the FDCPA, which by its terms authorizes
garnishment of "nonexempt disposable earnings," id. § 3205(a),
defined as the lesser of "25 percent of disposable earnings," id.
§ 3002(9), or the excess of weekly disposable earnings over thirty
times the Federal minimum hourly wage, 15 U.S.C. § 1673 (codifying
section 303 of the Consumer Credit Protection Act, cross-referenced
by 28 U.S.C. § 3002(9)).

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 The United States moved for reconsideration, arguing that

the court had misconstrued its discretion under 28 U.S.C. § 3013 in

imposing so low a monthly payment toward the restitution

obligation.3 The district court granted the motion for

reconsideration, but ordered further briefing on, among other

issues, the question of whether First Circuit precedent prohibited

the government from using the FDCPA garnishment procedure to

collect restitution on behalf of a private party. See Bongiorno,

106 F.3d at 1036-40; see also Rostoff, 164 F.3d at 69; Timilty, 148

F.3d at 5. The government replied that the First Circuit

precedents referred to by the district court all interpreted a

superseded statutory restitution scheme, and that under the MVRA,

the government may use FDCPA procedures to enforce restitution owed

to private victims.

On June 4, 2010, the district court vacated its January

28 order of continuing garnishment and held that First Circuit

precedent did foreclose the government from invoking the FDCPA to

collect restitution owed to a private victim under the MVRA,

because by its own terms the FDCPA applies only to debts that are

3
Section 3013 provides: "The court may at any time on its
own initiative or the motion of any interested person . . . make an
order denying, limiting, conditioning, regulating, extending, or
modifying the use of any enforcement procedure" under the FDCPA.
28 U.S.C. § 3013.

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"owing to the United States." 28 U.S.C. § 3002(3); United States

v. Witham, 757 F. Supp. 2d 91, 92 (D.N.H. June 4, 2010).4

The government appeals this order, arguing that under the

MVRA, the fact that the FDCPA does not apply on its own terms to

restitution owed to private victims is not controlling. The MVRA,

it argues, made the authority of the United States to enforce all

restitution orders coextensive with its authority to enforce fines,

which, no one disputes, includes the authority to invoke FDCPA

procedures. Witham argues that the district court was correct to

find that prior precedent controlled the outcome of the case,

because the FDCPA's definition of "debt" continues to be the

dispositive question of statutory interpretation.

II. Analysis

A. The Statutory Scheme Has Changed Since Bongiorno

Through a series of enactments from 1982 to 1996,

Congress has provided that criminals, in addition to paying fines

to the United States as penalties for their crimes, should pay

4
Also on June 4, 2010, the district court ordered Witham
to pay $200 per month toward his obligation, subject to adjustment
on either his or the government's motion if his economic
circumstances changed. United States v. Witham, No. 00-CR-17-2,
2010 WL 2465354, at *1 (D.N.H. June 4, 2010). However, on October
8, 2010, at Witham's request, the district court found that Witham
was not then employed and had insufficient funds to support
himself. The court suspended the $200 monthly payments, subject to
an order that Witham notify the court promptly upon any material
change in his economic circumstances that would allow him to begin
payments again. United States v. Witham, No. 00-CR-17-2, slip op.
at 1-2, (D.N.H. Oct. 8, 2010).

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restitution both to the private individuals and institutions

victimized by their crimes and to the United States when it is the

victim. Each successive enactment has strengthened the procedures

for imposing and enforcing restitution orders. The statutory

scheme began with the Victim and Witness Protection Act of 1982

(VWPA), Pub. L. No. 97-291, § 5. As relevant to this case, the

scheme was amended as part of the broader Sentencing Reform Act of

1984, Pub. L. No. 98-473, title II, ch. II, § 212, to enhance the

power of the United States, but not private victims, to use new

federal fine collection statutes to collect restitution.5 Unhappy

about the pace of enforcement of restitution orders, Congress

enacted the MVRA in 1996, making a number of changes to the

restitution scheme. It is the effect of these changes that is in

question in this case.

Under the original 1982 VWPA, if a defendant failed to

pay restitution ordered by a federal court, either the United

States or the victim named in the restitution order could enforce

5
The amendment authorized the United States, but not
private victims, to alternatively enforce restitution orders "in
the manner provided for the collection and payment of fines" under
a new fine enforcement scheme, codified at 18 U.S.C. § 3613. 18
U.S.C. § 3663(h)(1)(A), repealed by the Mandatory Victim
Restitution Act (MVRA), Pub. L. No. 104-132, § 205(a)(2). The 1984
version of § 3613 provided a lien procedure and, as an alternative,
language similar to then-§ 3663(h)(1)(B), providing for "execution
against the property of the person fined in like manner as
judgments in civil cases." Id. § 3613(e), amended by Pub. L. No.
104-132, § 207(c). In 1988 an amendment was made to correct a
technical error in the 1984 Act's cross-references to § 3613. See
Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7042.

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the order "in the same manner as a judgment in a civil action." 18

U.S.C. § 3663(h)(1)(B), (2), repealed by Pub. L. No. 104-132,

§ 205(a)(2). Judgments in civil actions can be satisfied by

following the procedures available under the law of the state in

which the court is located, except that "a federal statute governs

to the extent it applies." Fed. R. Civ. P. 64(a) (judgment of

property); Fed. R. Civ. P. 69(a)(1) (money judgment) (emphasis

added); see also Bongiorno, 106 F.3d at 1040 (describing federal

government's enforcement options at the time of the case). The

1984 amendment left this enforcement mechanism intact.

The FDCPA, Pub. L. No. 101-647, §§ 3601-3631, was enacted

in 1990, eight years after the VWPA. By its terms, the statute

provides "civil procedures for the United States . . . to recover

judgment on a debt," and "shall not apply with respect to an amount

owing that is not a debt." 28 U.S.C. § 3001(a)(1), (c). As

relevant to orders of restitution, the statute defines "debt" as

"an amount that is owing to the United States." Id. § 3002(3)(B).

We have recognized that the FDCPA only extends to "those

obligations owing to the federal government." Bongiorno, 106 F.3d

at 1036.

In Bongiorno, a case under the Child Support Recovery

Act, this court held that "a debt cannot be eligible for inclusion

under the FDCPA if the United States is neither the formal owner

nor the direct beneficiary of it." Id. at 1037. The FDCPA by its

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own terms did not apply to orders of restitution owing to private

victims, and so under the restitution scheme then in effect could

not be used by the United States to enforce such orders. Id. at

1039. Bongiorno did not discuss the MVRA, which was inapplicable

to that case because the underlying conviction occurred before the

MVRA's effective date. See Pub. L. No. 104-132, § 211.

In a separate order denying panel rehearing and rehearing

en banc, the Bongiorno court rejected the government's attempt to

raise for the first time an entirely new set of arguments about the

1982 VWPA. United States v. Bongiorno, 110 F.3d 132, 133 (denying

reh'g and reh'g en banc). In denying panel rehearing, the court

emphasized that under Federal Rules of Civil Procedure 64 and

69(a), governing enforcement of civil judgments, the FDCPA "simply

is not an 'applicable' federal statute" when restitution is owed to

a private victim. Id. at 134. The panel also noted that the

legislative history of the VWPA "specifically points to Rule 64" as

governing enforcement of restitution orders. Id. The United

States could enforce private-victim restitution orders only through

the patchwork of state-law procedures for executing judgments,

absent some other applicable federal law. See id. No arguments

were raised under the 1996 MVRA.

The 1996 MVRA, enacted as Title II of the Antiterrorism

and Effective Death Penalty Act of 1996, dramatically changed the

statutory restitution scheme by mandating restitution of all

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victims and enhancing collection and enforcement rules. See Pub.

L. No. 104-132, §§ 201-211. In addition to making restitution a

mandatory part of many federal sentences, id. §§ 202, 204; 18

U.S.C. §§ 3556, 3663A, the MVRA made paying restitution a condition

of probation, Pub. L. No. 104-132, § 203; 18 U.S.C. § 3563(a)(6)-

(7). The MVRA also replaced the existing statutory procedure in 18

U.S.C. § 3664 for issuing an order of restitution with a much more

detailed procedure "for issuance and enforcement of order[s] of

restitution." Pub. L. No. 104-132, § 206(a) (emphasis added); 18

U.S.C. § 3664.

Significantly, the MVRA gave high priority to private-

victim restitution orders in particular. In allocating any

payments received from defendants, the MVRA gave higher priority to

payment of "[r]estitution of all victims" than to payment to the

United States of fines and costs.6 Pub. L. No. 104-132,

§ 207(c)(2); 18 U.S.C. § 3612(c). And where both the United States

and a private victim are owed restitution, "the court shall ensure

that all other victims receive full restitution before the United

States receives any restitution." 18 U.S.C. § 3664(i).

In addition to giving private-victim restitution such

high priority, the act also made the United States responsible for

6
The only higher-priority category than restitution is
special assessments, 18 U.S.C. § 3612(c)(1), which Congress
prioritized because they fund victim assistance programs, see S.
Rep. No. 104-179, at 22 (1995).

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the collection of unpaid restitution. Pub. L. No. 104-132,

§ 207(c)(2); 18 U.S.C. § 3612(c) ("The Attorney General shall be

responsible for collection of an unpaid fine or restitution

. . . ."). This brought restitution into line with the

responsibility the United States already had for collecting unpaid

fines. This mandate of responsibility is in the same statutory

section, 18 U.S.C. § 3612, as an MVRA provision that could only

apply to private victims, requiring "each victim to notify the

Attorney General" of contact information for restitution purposes.

Pub. L. No. 104-132, § 207(c)(2); 18 U.S.C. § 3612(b)(1)(G). This

structure makes it clear that private-victim orders are within the

responsibility of the United States.

As to enforcement mechanisms, the MVRA repealed 18 U.S.C.

§ 3663(h), the section which under prior law had invoked the

Federal Rules of Civil Procedure by authorizing the United States

to enforce restitution orders "in the same manner as a judgment in

a civil action." Pub. L. No. 104-132, § 205(a)(2) (striking 18

U.S.C. § 3663(c)-(i)). As a replacement, the MVRA added 18 U.S.C.

§ 3664(m)(1)(A)(i), which provides, "[a]n order of restitution may

be enforced by the United States in the manner provided for" in 18

U.S.C. §§ 3611-3615, which had previously governed imposition and

collection of fines, but which the MVRA amended to govern both

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fines and restitution.7 Pub. L. No. 104-132, § 206(a); 18 U.S.C.

§ 3664(m)(1)(A)(i). Next, the MVRA amended 18 U.S.C. § 3613, which

governed enforcement of fines, by adding a new subsection (f)

expressly making "all provisions" of § 3613 "available to the

United States for the enforcement of an order of restitution."

Pub. L. No. 104-132, § 207(c)(3); 18 U.S.C. § 3613(f). Further,

the MVRA amended the key fine--and now restitution--enforcement

mechanism in § 3613, adding language that "[t]he United States 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."8 Pub. L. No. 104-132, § 207 (c)(3); 18

U.S.C. § 3613(a) (emphasis added). The procedures for the

enforcement of a civil judgment under Federal law include the

FDCPA, which had already been available for the enforcement of

fines. See 28 U.S.C. § 3002(3)(B) (listing fines owed to United

7
The statutory mechanism is as follows: 18 U.S.C.
§ 3664(m)(1)(A)(i) provides for enforcement "in the manner provided
for in subchapter C of chapter 227 and subchapter B of chapter 229
of this title." Subchapter C of chapter 227 encompasses the
statutory sections which govern imposition of fines as part of
federal criminal sentences, see 18 U.S.C. §§ 3571-3574, and which
in turn provide that "[t]he implementation of a sentence to pay a
fine is governed by the provisions of subchapter B of chapter 229,"
id. § 3574. Subchapter B of chapter 229 encompasses the statutory
sections governing payment and collection of fines and restitution,
18 U.S.C. §§ 3611-3615.
8
This language replaced language in the old § 3613(e) that
authorized "execution against the property of the person fined in
like manner as judgments in civil cases." 18 U.S.C. § 3613(e),
repealed by Pub. L. No. 104-132, § 207(c)(3).

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States as a debt under the terms of the FDCPA); Timilty, 148 F.3d

at 4 n.3 (acknowledging FDCPA may be used to enforce fines).

B. Our Pre-MVRA Precedents Do Not Control This Case

In all three of our earlier cases, including Bongiorno,

that discuss the inapplicability of the FDCPA to private-party

orders of restitution, the MVRA did not apply.9 The rule in

Bongiorno does not control this case precisely because Congress has

changed the law. See United States v. Rodriguez-Pacheco, 475 F.3d

434 (1st Cir. 2007) (stating exception to rule of stare decisis

where a panel opinion is "undermined by controlling authority,

subsequently announced, such as . . . a statutory overruling")

(quoting Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir.

1995)) (internal quotation mark omitted).

We do not accept the proposition that, even if Bongiorno

and its progeny did not directly apply the MVRA, "[t]he substantive

9
In each case, the defendants were convicted of the crimes
underlying the restitution orders before the April 24, 1996
effective date of the MVRA. See Pub. L. No. 104-132, § 211 (making
MVRA amendments applicable to defendants "convicted on or after the
date of enactment"). Because "[t]he amended restitution provision
applies only to sentencing proceedings where the defendant is
convicted on or after April 24, 1996," United States v. Timilty,
148 F.3d 1, 2 n.1 (1st Cir. 1998), in each case we applied the pre-
MVRA law in effect at the time of the convictions. See United
States v. Rostoff, 164 F.3d 63, 66 n.3 (1st Cir. 1999) ("Because
the Rostoffs were convicted before the effective date of [the MVRA]
changes . . . the pre-amendment statute is applicable."); Timilty,
148 F.3d at 2 n.1; United States v. Bongiorno, 110 F.3d 132, 133-34
(1st Cir. 1997) (denying reh'g and reh'g en banc) (discussing VWPA
legislative history and 18 U.S.C. § 3663(h), a VWPA provision
repealed by the MVRA, as applicable law).

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MVRA provisions upon which the government relies . . . are not new"

because the VWPA included "[v]irtually identical provisions," and

so the Bongiorno rule was still binding. Witham, 757 F. Supp. 2d

at 92. In Bongiorno the question of whether the FDCPA applied by

its own terms to private-party restitution orders was dispositive

because under the VWPA restitution was enforceable only through

regular civil judgment enforcement mechanisms, which under the

Federal Rules of Civil Procedure include a federal statute only "to

the extent it applies" on its own terms. Fed. R. Civ. P. 64,

69(a). The operative language in the VWPA triggering this

reference to only the Federal Rules was repealed by the MVRA and

replaced with different language in a different statutory section,

§ 3613(a), in a manner which fully integrated restitution into the

structure for enforcing fines.

C. Section 3613(a) Authorizes Use of the FDCPA to Enforce
Private-Victim Restitution Orders

We begin with the plain language of the MVRA. See Mass.

Museum of Contemporary Art Found., Inc. v. Buchel, 593 F.3d 38, 50

(1st Cir. 2010). When the specific sections authorizing

enforcement are read alone, the changes enacted by the MVRA are

subtle. Section 3613(a) simply provides for enforcement of a fine

"in accordance with the practices and procedures for the

enforcement of a civil judgment under Federal law or State law,"

and §§ 3613(f) and 3664(m)(1)(A)(i) extend this provision to orders

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of restitution. Witham argues that the changes enacted by the MVRA

are "immaterial," presumably because the former § 3663(h)(1)(A)

also authorized the United States to enforce restitution orders "in

the manner provided for the collection and payment of fines" and

"in the same manner as a judgment in a civil action." 18 U.S.C.

§ 3663(h)(1), repealed by Pub. L. No. 104-132, § 205(a)(2). But we

do not read individual sections of statutes in isolation, because

"the meaning of statutory language, plain or not, depends on

context." United States v. DiTomasso, 621 F.3d 17, 22 (1st Cir.

2010) (quoting Holloway v. United States, 526 U.S. 1, 7 (1999))

(internal quotation marks omitted).

In that context, Witham's argument fails. We turn first

to the text of the two statutes' enforcement mechanisms. The MVRA

repealed the language referring to the Federal Rules, and replaced

it with language authorizing the United States to invoke "the

practices and procedures for the enforcement of a civil judgment

under Federal law or State law." 18 U.S.C. § 3613(a) (emphasis

added); compare § 3663(h)(1) (VWPA enforcement language repealed by

Pub. L. No. 104-132, § 205(a)(2)) with § 3613(a), (f) (MVRA

enforcement language). The FDCPA, in turn, is the main source of

relevant "practices and procedures . . . under Federal law" which

are invoked by the MVRA. See 28 U.S.C. § 3001(a)(1) (establishing

that in general, the FDCPA "provides the exclusive civil procedures

for the United States--to recover a judgment on a debt"); id.

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§ 3205 (providing procedure for garnishment); United States v.

Phillips, 303 F.3d 548, 551 (5th Cir. 2002) ("The federal law that

provides the practices and procedures for the enforcement of a

civil judgment is the FDCPA.").

Section 3613(a) as amended by the MVRA, then,

incorporates all FDCPA procedures into the authority given to the

United States under the fine and restitution enforcement scheme.10

By this incorporation, § 3613(a) authorizes the United States to

enforce fines and restitution orders using the FDCPA. This

authorization, unlike the prior scheme, does not depend on whether

the FDCPA applies to such orders by its own terms. See § 3613(a).

Considering the text of the entire restitution scheme as

amended by the MVRA, we conclude that nothing in the MVRA limits

its authorization of the United States to use FDCPA procedures only

to restitution orders in favor of the United States, as opposed to

private-party victims. The text of the enforcement statute,

§ 3613, does not distinguish between restitution orders in favor of

the United States and orders running in favor of private-party

10
The MVRA identifies the "procedures" available to the
United States for enforcing civil judgments and authorizes the
United States to use those same procedures as part of the
restitution enforcement scheme. See 18 U.S.C. § 3613(a). This
authorization is independent of the scope-limiting terms of the
FDCPA that would apply absent the independent authorization in the
MVRA. See 28 U.S.C. § 3001 (defining scope of FDCPA).

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victims.11 A different section does distinguish between the two

types of restitution, and that supports our reading of § 3613. In

allocating payments received from defendants, the MVRA prioritized

"full restitution" of all victims other than the United States

"before the United States receives any restitution." 18 U.S.C.

§ 3664(i). Here Congress did make a distinction; under established

principles of statutory interpretation, its choice not to do so in

the enforcement provisions was not inadvertent. See Jusino Mercado

v. Commonwealth of P.R., 214 F.3d 34, 42 (1st Cir. 2000) (where

Congress distinguished between two categories elsewhere in the

statute, its choice not to do so in another provision was

purposeful). When this priority for private-victim restitution is

considered together with the MVRA's mandate that the United States

is responsible for collecting restitution generally, Pub. L. No.

104-132, § 207(c)(2); 18 U.S.C. § 3612, it becomes clear that

Congress purposefully integrated private-victim restitution orders

into the scheme for enforcement by the United States. These same

priority and mandate provisions also make it clear that the full

enforcement authority of the United States extends to orders in

favor of all victims.

11
The enforcement language of the VWPA itself did not
distinguish between the two types of restitution, either, but the
distinction arose in Bongiorno because of the interpretation
questions raised by the VWPA's reliance on the enforcement
mechanisms available generally in a civil action, as discussed
above. See Bongiorno, 110 F.3d at 133-34; United States v.
Bongiorno, 106 F.3d 1027, 1036 (1st Cir. 1997).

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 In addition, in the MVRA Congress integrated the

statutory restitution and fine schemes. The MVRA added subsection

(f) to § 3613 making the entire fine enforcement statute applicable

to orders of restitution, and the FDCPA has been available to the

United States since its enactment to collect fines.12 See Timilty,

148 F.3d at 4 n.3.

The MVRA's legislative history supports these conclusions

about the statutory text and structure. The House and Senate

Reports both demonstrate that the bill was primarily focused on

restitution to individual victims of crime, with no stated concern

for the United States as a victim. See, e.g., S. Rep. No. 104-179,

at 23 (1995) (discussing victims' "powerless[ness]" over

prosecutor's choices); id. at 17 ("The economic and personal costs

of crime to the American people are enormous. . . . [E]ach year 25

percent of U.S. households are victimized by one or more crimes.");

H.R. Rep. No. 104-16, at 5 (1995) ("The[] voices [of crime victims]

are no longer missing from the national debate concerning criminal

12
In more than twenty other instances the MVRA modified
statutory phrases detailing how fines are to be collected and
enforced, incorporating orders of restitution into the provisions.
For instance, the title of § 3612 was amended from "Collection of
unpaid fine" to "Collection of unpaid fine or restitution," and the
phrase "or restitution" was inserted into the statutory text after
the word "fine" eleven times throughout the text of the section;
the phrase "and restitution" was inserted twice. See Pub. L. No.
104-132, § 207(c)(2) (amending 18 U.S.C. § 3612); see also id.
§ 207(b)-(c) (incorporating references to restitution into 18
U.S.C. §§ 3572, 3611, and 3614). These detailed amendments
rendered the authority of the United States to enforce orders of
restitution coextensive with its authority to enforce fines.

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justice. . . . [H]owever, . . . . [u]nder existing law, crime

victims' rights are still too often overlooked."). The Senate

Report also describes a clear congressional commitment to

"consolidating the procedures for the collection of unpaid

restitution with existing procedures for the collection of unpaid

fines, while at the same time strengthening these procedures,"

changes which, by making the fine enforcement statute the

centerpiece of restitution enforcement, necessarily shifted to the

United States a significant burden for enforcing the private-victim

restitution orders with which Congress professed itself so

concerned. See S. Rep. No. 104-179, at 12.13 The prior scheme

already allowed the United States to use the FDCPA to collect fines

and restitution owed the government; our reading of the MVRA gives

effect to Congress's intent to "strengthen" restitution enforcement

mechanisms and "consolidate" them with the fine scheme.

We add that the only other circuit court to have squarely

faced the question of private-party restitution enforcement under

the MVRA has held that the "the plain language of the MVRA" clearly

authorizes the United States to use FDCPA practices to recover

restitution owed to a private party, largely for the reasons we

13
In addition, Senator John McCain, speaking on behalf of
the committee that had considered the bill, explained during debate
that "the bill will make procedures for assessing and enforcing
criminal debt uniform among the three major categories: mandatory
assessments, discretionary fines and restitution which after the
passage of this bill will be mandatory." 141 Cong. Rec. S19,281
(daily ed. Dec. 22, 1995) (Statement of Sen. John McCain).

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have just explained.14 Phillips, 303 F.3d at 551. The Fifth

Circuit concluded, as we have, that the reference in § 3613(a) to

"Federal law" incorporates the FDCPA's procedures into the

restitution scheme, id., independent of the definition of "debt" in

the FDCPA itself, id. at 550. The court also reasoned that, given

the goal of the MVRA to make restitution enforcement more

streamlined and effective, it "is absurd to suggest" that the

statute would have withheld from the United States "the most

effective means for the Government to enforce private victim

restitution orders." Id. at 551. The Fifth Circuit specifically

declined to adopt the reasoning of Bongiorno because that case had

not interpreted the MVRA. Id. at 550 n.3.

III. Conclusion

The question raised on this appeal is a narrow one. We

hold only that the MVRA provides the United States with independent

authorization to invoke procedures under the FDCPA in order to

14
Two other circuits have ruled that the FDCPA is generally
incorporated into the MVRA's restitution enforcement scheme, but
those courts were not presented with the specific question of
whether private-victim restitution orders are enforceable by the
United States using FDCPA procedures. See United States v.
Kollintzas, 501 F.3d 796 (7th Cir. 2007) (holding that the MVRA
authorizes use of FDCPA garnishment procedure to enforce
restitution order without addressing private party issue); United
States v. Mays, 430 F.3d 963, 965 (9th Cir. 2005) (noting, in
rejecting defendant's claim that the United States must open a new
civil matter against him rather than garnish his wages through his
old criminal case number, "Although the MVRA is a criminal statute,
it expressly, albeit tortuously, provides that the FDCPA's civil
enforcement remedies may be used to enforce orders of restitution
entered under the MVRA.").

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enforce all orders of restitution in criminal cases, including

those in favor of private victims.

We vacate the judgment of the district court and remand

the case for further proceedings consistent with this opinion.

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