United States v. Gianelli

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-10233
Plaintiff-Appellee, D.C. No.
v.  CR-86-20083-RMW
RONALD J. GIANELLI, ORDER AND
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding

Argued and Submitted
February 12, 2008—San Francisco, California

Filed September 17, 2008

Before: William C. Canby, Jr., David R. Thompson, and
Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Thompson

13009
 UNITED STATES v. GIANELLI 13011

COUNSEL

Patrick James Sullivan, Oakland, California, for the
defendant-appellant.

Richard A. Friedman, United States Department of Justice,
Washington, D.C., for the plaintiff-appellee.
13012 UNITED STATES v. GIANELLI
ORDER

The appellant Gianelli’s Petition for Rehearing is
GRANTED. The opinion filed March 20, 2008, and published
as United States v. Gianelli, 519 F.3d 962 (9th Cir. 2008), is
withdrawn. In place of that withdrawn opinion, a new opinion
is filed with this Order.

The parties are not precluded from filing further petitions
for rehearing.

OPINION

THOMPSON, Senior Circuit Judge:

In May of 1987, Ronald J. Gianelli (“Gianelli”) pleaded
guilty to one count of mail fraud, 18 U.S.C. § 1341, in the
Northern District of California. As part of his sentence he was
ordered to pay restitution to the federal government in the
amount of $125,000. Gianelli did not appeal that judgment.

Gianelli now appeals a May 2007 district court order rein-
stating an October 17, 2001 Order Imposing Payment Plan
aimed at collecting the remaining amount of restitution owed.
Gianelli contends that the government is barred from enforc-
ing the restitution judgment because ten years from the date
of that judgment passed on May 13, 1997, and California state
law precludes enforcement of a judgment after that period of
time. He further argues that the original $125,000 restitution
amount was improper because it was not predicated upon the
government’s actual loss, as required by Hughey v. United
States, 495 U.S. 411 (1990).

We have jurisdiction under 28 U.S.C. § 1291. We conclude
that Gianelli waived the right to appeal the amount of the res-
titution order by failing to file a direct appeal, and we affirm
 UNITED STATES v. GIANELLI 13013
the district court’s May 1, 2007 order reinstating the October
17, 2001 payment plan.

I. BACKGROUND

An indictment filed on July 31, 1986, in the United States
District Court for the Northern District of California charged
Gianelli with six counts of mail fraud, conspiracy to defraud
the United States, and 17 counts of receiving kickbacks on
subcontracts for Defense Department procurement contracts.
Gianelli pleaded guilty to one count of mail fraud. The
remaining counts were dismissed. He was sentenced on May
13, 1987 to five years of imprisonment, with all but six
months suspended, and ordered to pay $125,000 in restitution
to the United States. The remaining counts were dismissed.

On October 29, 1991, while Gianelli was on probation, he
entered into an agreement with the Probation Office that he
would make payments of $100 per month toward the satisfac-
tion of his restitution debt. Gianelli substantially made the
payments as agreed. Then, on December 15, 1999, in an
attempt to satisfy the outstanding balance of $109,300, the
government applied for a writ of execution under the Federal
Debt Collection Procedures Act, 28 U.S.C. § 3203. The gov-
ernment wanted to levy the writ on a house and 52 acres of
land belonging to Gianelli. After numerous objections, the
district court, by a September 19, 2001 order, adopted the
magistrate judge’s finding that the United States was “entitled
to issuance of the writ,” but the court suggested an alternative
payment plan by which “in lieu of execution . . . it would be
just . . . to allow [Gianelli] to pay his debt in monthly install-
ments, including interest so as to provide the United States
with the full value to which it is entitled . . . .”

On September 25, 2001, Gianelli agreed to the installment
payment alternative, but expressly reserved his objection to
the government’s right to collect his restitution obligation. On
October 17, 2001, the district court entered the installment
13014 UNITED STATES v. GIANELLI
payment order. On October 26, 2001, Gianelli timely filed his
notice of appeal from that order. Gianelli argued that the dis-
trict court lacked authority to order him to make further pay-
ment on his restitution obligation because under California
state law that obligation expired in 1997, ten years after the
restitution judgment in the case.

On February 3, 2003, we vacated the district court’s Octo-
ber 17, 2001 installment payment order, and remanded for
further proceedings to determine whether restitution was
ordered under the Federal Probation Act (“FPA”),1 or the Vic-
tim Witness Protection Act (“VWPA”).2 See United States v.
Gianelli, 55 Fed. App’x. 831, 832 & n.1 (9th Cir. 2003). We
did not reach the question whether the restitution obligation
was still extant. Id.

On remand, the district court determined that the statutory
basis for the restitution order was the VWPA. The district
court then entered its May 1, 2007 order, reinstating the Octo-
ber 17, 2001 payment plan. The district court found that Gia-
nelli had waived his argument as to the propriety of the
amount of restitution by failing to appeal the 1987 judgment.
The district court thus declined to consider Gianelli’s argu-
ment that the original $125,000 restitution amount was not the
government’s actual loss as required by the VWPA under
Hughey, 495 U.S. 411. The district court determined that the
“VWPA did not at the time of defendant’s offense limit the
time in which [restitution] could be enforced.” The district
court also noted that “[d]uring the pendency of this remand
. . . the United States received payment of $80,901.88 from
the [voluntary] escrow sale of [Gianelli’s] real property . . .
1
18 U.S.C. § 3651, repealed by Sentencing Reform Act of 1984, Pub.
L. No. 98-473, § 212(a)(2), 98 Stat. 1837 (1984) (effective Nov. 1, 1987).
2
Pub. L. No. 97-291, § 5(a), 96 Stat. 1248 (1982) (codified at 18 U.S.C.
§§ 3579(h) & 3580), renumbered by Sentencing Reform Act of 1984, Pub.
L. No. 98-473, § 212(a)(1), 98 Stat. 1837 (1984) (now at 18 U.S.C.
§§ 3663 and 3664).
 UNITED STATES v. GIANELLI 13015
[and] [t]he parties have stipulated that if the court finds that
the restitution order is not time-barred . . . these funds will be
applied to and fully satisfy defendant’s restitution debt, absent
a contrary order from the court of appeals.” Gianelli now
appeals this May 1, 2007 order.

II. STANDARD OF REVIEW

We review de novo questions of statutory interpretation.
United States v. Horvath, 492 F.3d 1075, 1077 (9th Cir.
2007). “Whether an appellant has waived his statutory right
to appeal is [also] a matter of law reviewed de novo.” United
States v. Shimoda, 334 F.3d 846, 848 (9th Cir. 2003) (internal
citations omitted).

III. DISCUSSION

A. Enforcement of Restitution under the VWPA

On remand, the district court determined that the restitution
order was predicated upon the VWPA. Gianelli does not dis-
pute this determination. He argues that, under the then exist-
ing version of the VWPA, the government is forbidden from
collecting the balance of his restitution debt because under
California state law the ability to collect the restitution bal-
ance expired ten years after the date of his conviction.3

[1] Gianelli is correct that California law typically pre-
cludes the issuance of a writ of execution to enforce a judg-
ment when 10 years has passed since the judgment was
entered. Cal. Civ. Proc. Code § 683.020. The VWPA provides
that a judgment under that Act “may be enforced by the
United States or a victim named in the order to receive the
restitution in the same manner as a judgment in a civil
action.” 18 U.S.C. § 3579(h), renumbered by Sentencing
Reform Act of 1984, Pub. L. No. 98-473, § 212(a)(1), 98 Stat.
3
Judgment was entered in his case on May 13, 1987.
13016 UNITED STATES v. GIANELLI
1837 (1984), repealed by Antiterrorism & Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, § 205(a)(2), 110
Stat. 1214, 1230 (1996). As Gianelli points out, according to
Federal Rule of Civil Procedure 69(a)(1) federal enforcement
by writ of execution “must accord with the procedure of the
state where the court is located . . . .” Fed. R. Civ. P. 69(a)(1).

[2] Although Federal Rule of Civil Procedure 69(a)(1) pro-
vides that the federal government’s enforcement by writ of
execution “must accord with the procedures of the state where
the court is located,” that Rule goes on to provide that not-
withstanding this directive, “a federal statute governs to the
extent it applies.” Fed R. Civ. P. 69(a)(1). The Federal Debt
Collection Procedures Act of 1990 (“FDCPA”) is such a stat-
ute. The FDCPA provides that, with the exception of conflict-
ing federal law, it “provides the exclusive civil procedures for
the United States to . . . recover a judgment on a debt.” 28
U.S.C. § 3001. “Debt” includes “an amount that is owing to
the United States on account of . . . restitution . . . .” 28 U.S.C.
§ 3002(3)(B); see also United States v. Mays, 430 F.3d 963,
965 (9th Cir. 2005) (concluding that the FDCPA’s civil
enforcement remedies may be used to enforce orders of resti-
tution entered under the MVRA4). The FDCPA further pro-
vides that it “shall preempt State law to the extent such law
is inconsistent.” 28 U.S.C. § 3003(d).

[3] Contrary to Gianelli’s argument, the California state
law at issue, California Civil Procedure Code section 683.020
(1987), which would preclude enforcement of a restitution
judgment after ten years from the entry of that judgment, is
such an inconsistent state law and is, therefore, preempted.
The FDCPA provides no time limit for the collection of debts
by writ of execution. See 28 U.S.C. § 3203. Further, because
the purpose of the FDCPA “is to create a comprehensive stat-
utory framework for the collection of debts owed to the
4
The statutory analysis in Mays applies equally to restitution ordered
under the VWPA. See 18 U.S.C. §§ 3663(d); 3664(m)(1)(A)(i); 3613(a).
 UNITED STATES v. GIANELLI 13017
United States government [and to] improve the efficiency and
speed in collecting those debts,” H.R. Rep. No. 101-736, at 32
(1990), a state law limiting such collection is inconsistent
with the purpose of the act and is, therefore, preempted. See
Mays, 430 F.3d at 965 (noting that the “FDCPA was enacted
‘to give the Justice Department uniform Federal procedures—
prejudgment remedies and postjudgment remedies—to collect
debts owed the United States nationwide.’ ”) (quoting H.R.
Rep. No. 103-883, at 81 (1995)).

Although not binding upon us, the reasoning of United
States v. Pierce, 231 B.R. 890, 893 (E.D.N.C. 1998) supports
our conclusion. In Pierce, the district court rejected the argu-
ment that where the government proceeded to enforce a judg-
ment under the FDCPA, Federal Rule of Civil Procedure
69(a)(1) incorporated a state law limitation prohibiting
enforcement after ten years. Id. That court reasoned that, in
light of the legislative history underlying the FDCPA and the
language of the statute itself, binding the federal government
to state law limitations on enforcement “would completely
thwart the FDCPA’s stated purpose of the creation of uniform
federal procedures for the collection of debts to the federal
government.” Id. We agree.

We also reject Gianelli’s contention that the Ex Post Facto
Clause precludes enforcement of the extant restitution judg-
ment under the FDCPA. It is well established that an Ex Post
Facto violation occurs when a law “changes the punishment,
and inflicts a greater punishment, than the law annexed to the
crime, when committed.” Carmell v. Texas, 529 U.S. 513,
522, 525 (2000) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386,
390, 1 L.Ed. 648 (1798)). Procedural changes, such as the
enforcement mechanism provided by the FDCPA in Gianel-
li’s case, which do not “alter[ ] the definition of criminal con-
duct or increase[ ] the penalty by which a crime is
punishable,” do not violate the Ex Post Facto Clause. Califor-
nia Dep’t of Corrections v. Morales, 514 U.S. 499, 506 n.3
(1995); see also Quarles v. Kane, 482 F.3d 1154, 1155 (9th
13018 UNITED STATES v. GIANELLI
Cir. 2007) (amendment to California statute which increased
the rate at which restitution payments could be collected was
not an Ex Post Facto Clause violation because it did not
impose additional punishment); United States v. Baggett, 125
F.3d 1319, 1323 (9th Cir. 1997) (procedural changes which
made it less onerous for an United States Attorney to substan-
tiate requested restitution amounts was not an Ex Post Facto
Clause violation because the changes did not increase the
available punishment).

[4] In view of the foregoing, we conclude that because the
government proceeded to collect Gianelli’s VWPA restitution
obligation by means of the FDCPA, the California limitation
on enforcement set forth in California Code of Civil Proce-
dure § 683.020 is inapplicable.5

B. Appeal of Restitution Amount

Gianelli also argues that the sentencing portion of the 1987
judgment that required him to pay restitution in the amount of
$125,000 was improper under Hughey. Interpreting 18 U.S.C.
§§ 3579 and 3580 in Hughey, the Supreme Court held that
“the language and structure of the [VWPA] make plain Con-
gress’ intent to authorize an award of restitution only for the
loss caused by the specific conduct that is the basis of the
offense of conviction.” Hughey, 495 U.S. at 413.

[5] Gianelli was sentenced on May 13, 1987. He never
appealed that sentence. The first time he filed an appeal
5
We express no opinion on whether, even though California law would
bar the issuance of a writ of execution on the extant restitution judgment,
California law would not preclude the federal government from filing a
new lawsuit on the judgment and obtaining a renewed judgment that
would be enforceable under California law. See Custer v. McCutcheon,
283 U.S. 514, 519 (1931); Smith v. United States, 143 F.2d 228, 229 (9th
Cir. 1944); see also United States v. Thornburg, 82 F.3d 886, 893-894 (9th
Cir. 1996); United States v. Overman, 424 F.2d 1142, 1147 n.7 (9th Cir.
1970); Smith, 143 F.2d at 229.
 UNITED STATES v. GIANELLI 13019
related to his case was October 26, 2001. In that appeal, he
challenged the October 17, 2001 district court Order Imposing
Payment Plan for his outstanding restitution balance.6

[6] Gianelli waived his ability to appeal the amount of resti-
tution ordered in the 1987 judgment by failing to file a direct
appeal from that judgment. See United States v. James, 109
F.3d 597, 599 (9th Cir. 1997) (concluding that where a defen-
dant fails to raise an issue in his first direct appeal he waives
the issue); United States v. Schlesinger, 49 F.3d 483, 485 (9th
Cir. 1994) (concluding that “nonconstitutional sentencing
errors that have not been raised on direct appeal have been
waived and generally may not be reviewed by way of [a
habeas petition]”). But see United States v. Broughton-Jones,
71 F.3d 1143, 1147 (4th Cir. 1995) (holding, in the context of
a valid waiver of appeal executed pursuant to a plea agree-
ment, that “[b]ecause a restitution order imposed when it is
not authorized by the VWPA is no less illegal than a sentence
of imprisonment that exceeds the statutory maximum, appeals
challenging the legality of restitution orders are . . . outside
the scope of a defendant’s otherwise valid appeal waiver.”)
(internal quotation marks omitted).

[7] While Gianelli has not asserted any authority under
which he might bring a collateral attack of the restitution
order, in the somewhat analogous context of federal habeas
relief, 28 U.S.C. § 2255, “an error of law [or fact] does not
provide a basis for collateral attack unless the claimed error
constituted a fundamental defect which inherently results in a
complete miscarriage of justice.”7 United States v. Addonizio,
6
Gianelli raised his Hughey objection in his reply brief related to that
2001 appeal. This does not affect the outcome of his case. In addition to
the fact that arguments raised for the first time in a reply brief are gener-
ally considered waived, Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th
Cir. 1990), as discussed below, Gianelli waived his ability to appeal the
amount of his restitution judgment by not timely appealing that judgment.
7
Gianelli cannot present his claim for relief from the restitution order as
a habeas petition because he is not seeking release from custody, and
because review of restitution orders is not properly brought in a habeas
petition. See United States v. Thiele, 314 F.3d 399, 401 (9th Cir. 2002).
13020 UNITED STATES v. GIANELLI
442 U.S. 178, 185-87 (1979) (internal citations and quotation
marks omitted) (noting that a “complete miscarriage of jus-
tice” would occur if a court refused to vacate a sentence
where the conduct for which a defendant was convicted was
subsequently made legal) (citing Davis v. United States, 417
U.S. 333 (1974)); see also United States v. Wilcox, 640 F.2d
970, 973 (9th Cir. 1981) (“Errors of law which might require
reversal of a conviction or sentence on appeal do not neces-
sarily provide a basis for [habeas relief].”).

[8] The indictment which contained the count to which
Gianelli pleaded guilty alleged that Gianelli and others, as a
result of an illegal scheme, received approximately $160,000
in cash. The sentencing court, by way of the Presentence
Report, was aware of this amount, and was aware of Gianel-
li’s assets, income, and liabilities. The Presentence Report
also indicated that Gianelli “appears to have used approxi-
mately $50,000 from the kickback scheme in the purchase of
his current residence in 1983,” and that Gianelli “appears to
have been the primary mover of the scheme, and without his
knowledge and cooperation the scheme could not have been
carried out.” In addition, after our remand in Gianelli’s appeal
of the October 17, 2001 order, the district court noted,
“[d]uring the pendency of this remand . . . the United States
received payment of $80,901.88 from the [voluntary] escrow
sale of [Gianelli’s] real property . . . . The parties have stipu-
lated that if the court finds that the restitution order is not
time-barred . . . these funds will be applied to and fully satisfy
defendant’s restitution debt, absent a contrary order from the
court of appeals.” In light of these factors, it would not be a
“complete miscarriage of justice” if Gianelli were precluded
from collaterally attacking the amount of his restitution obli-
gation.

Gianelli argues that his right to challenge the amount of the
restitution judgment should not be forfeited by reason of his
failure to file a direct appeal back in 1987 because the deci-
 UNITED STATES v. GIANELLI 13021
sion in Hughey did not come down until 1990. This argument
is unpersuasive.

In 1987 when Gianelli was sentenced, the VWPA provided,

The court, in determining whether to order restitu-
tion under section 3579 of this title and the amount
of such restitution, shall consider the amount of the
loss sustained by any victim as a result of the
offense, the financial resources of the defendant, the
financial needs and earning ability of the defendant
and the defendant’s dependents, and such other fac-
tors as the court deems appropriate.

Hughey, 495 U.S. at 416-17 (quoting 18 U.S.C. § 3580(a)
(1982)) (emphasis added). The Hughey court simply reaf-
firmed what the Act had already “ma[d]e plain”: that it was
“Congress’ intent to authorize an award of restitution only for
the loss caused by the specific conduct that is the basis of the
offense of conviction.” Id. at 413. If Gianelli thought the
amount of restitution ordered was inappropriate back in 1987,
he could have appealed that order. See Schlesinger, 49 F.3d
at 486 (holding that failure to raise an issue on direct appeal
was not excusable where “there is absolutely no reason why
[the defendant] should not have known of, and been able to
appeal, the alleged errors immediately”) (internal quotation
marks omitted).

Gianelli further argues that he could not have appealed the
amount of the restitution order earlier because it was not until
May 2007 that the district court determined the VWPA was
the basis for the order. This argument is likewise unpersua-
sive. The two possible bases for the restitution order in 1987
were the VWPA and the FPA. See Gianelli, 55 Fed. App’x.
at 832. As we have previously stated, Gianelli could have
appealed the amount of the restitution order under the VWPA
if he had been inclined to bring that appeal in 1987. In addi-
tion, at the time of Gianelli’s sentencing in May 1987, the
13022 UNITED STATES v. GIANELLI
FPA provided that a defendant “[m]ay be required to make
restitution or reparation to aggrieved parties for actual dam-
ages or loss caused by the offense for which conviction was
had.” 18 U.S.C.A. § 3651 (repealed Nov. 1, 1987). If Gianelli
had been inclined, when he was sentenced, to challenge the
amount of his restitution obligation on the ground he now
asserts, he could have done so under the then express lan-
guage of the FPA. See Schlesinger, 49 F.3d at 486.

IV. CONCLUSION

[9] Because the government proceeded under the FDCPA
to enforce the restitution judgment against Gianelli, the gov-
ernment is not bound by California Code of Civil Procedure
§ 683.020, and enforcement is not precluded by the Ex Post
Facto Clause. Gianelli waived his objection to the amount of
the 1987 restitution order by failing to file a timely direct
appeal.

The judgment of the district court is AFFIRMED.