Case: 22-60586 Document: 00516791855 Page: 1 Date Filed: 06/19/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 19, 2023
No. 22-60586
Summary Calendar Lyle W. Cayce
Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Dwayne G. Deer,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:08-CR-89-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Dwayne G. Deer was ordered to pay restitution after pleading guilty
in 2008 to conspiracy to commit bank fraud. In 2022, pursuant to the
Mandatory Victims Restitution Act (MVRA) and the Federal Debt
Collection Procedures Act, the Government successfully applied to the
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*
Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set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 Circuit Rule 47.5.4.
Case: 22-60586 Document: 00516791855 Page: 2 Date Filed: 06/19/2023
No. 22-60586
district court to enforce the restitution order by garnishing Deer’s earnings
and a 401(k)-retirement account in his name. Deer now appeals the order of
garnishment. This court generally examines questions of law de novo but
otherwise reviews garnishment orders for an abuse of discretion. United
States v. Clark, 990 F.3d 404, 407 (5th Cir. 2021).
Arguing that the restitution order is void or else defective on various
statutory and constitutional grounds, Deer asks this court to vacate, modify,
or otherwise act upon it. 1 However, his appeal from the garnishment
proceeding did not bring up the restitution order for review. See United States
v. Clayton, 613 F.3d 592, 594 (5th Cir. 2010); United States v. Onyeri,
996 F.3d 274, 281-83 (5th Cir. 2021). To the extent Deer seeks to appeal the
restitution order, that portion of the appeal is DISMISSED. See Clayton,
613 F.3d at 594.
Deer also disputed the restitution order’s validity during his
garnishment proceeding in the district court. As that court recognized, a
judgment debtor “may not use a garnishment proceeding to challenge the
underlying judgment and restitution order in his case.” Onyeri, 996 F.3d at
281. Although Deer maintains that jurisdictional defects in a prior
proceeding are always open to attack, he is mistaken. See Travelers Indemn.
Co. v. Bailey, 557 U.S. 137, 152-53 (2009); United States v. Parker, 927 F.3d
374, 381 n.9 (5th Cir. 2019). In any event, the one argument that he presents
as jurisdictional cannot be viewed as such. See Dolan v. United States,
560 U.S. 605 (2010). Deer accordingly fails to show that the district court
erred in finding his collateral attacks on the restitution order barred.
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1
Deer entered a plea agreement with the Government that includes a waiver of his
right to appeal or otherwise challenge his conviction and sentence. To the extent the
Government asks us to enforce the waiver, the issue is pretermitted. See United States v.
Story, 439 F.3d 226, 230 (5th Cir. 2006).
2
Case: 22-60586 Document: 00516791855 Page: 3 Date Filed: 06/19/2023
No. 22-60586
Next, Deer argues that the enforcement of liens securing restitution
debt is subject to a 10-year statute of limitations based on 26 U.S.C.
§ 6502(a)(1) and related provisions of the Revenue Code. As Deer notes, the
MVRA makes restitution enforceable in the same manner as federal tax liens.
See 18 U.S.C. § 3613(c), (f). It does not follow that provisions of the Revenue
Code apply in this context as a matter of course, however. See United States
v. Tilford, 810 F.3d 370, 372 (5th Cir. 2016) (“Criminal restitution, even as a
penalty for a failure to pay taxes, is not a tax.”); United States v. Clark,
990 F.3d 404, 409 & n.4 (5th Cir. 2021). Furthermore, § 3613 makes
restitution under the MVRA enforceable “[n]otwithstanding any other
Federal law,” and we have construed that language as overriding any
conflicting provisions. § 3613(a); see United States v. Elashi, 789 F.3d 547,
551-53 (5th Cir. 2015).
Deer also contends that the Government failed to comply with the
requirements of § 3612(d) and (e), but he again fails to show that the
provisions invoked apply here. Nor has he shown that his 401(k) account is
exempt from garnishment. See United States v. DeCay, 620 F.3d 534, 540-41
(5th Cir. 2010). Deer’s remaining arguments are unavailing because they fail
to suggest any error on the part of the district court or because they are
inadequately briefed. See United States v. Reagan, 596 F.3d 251, 254-55 (5th
Cir. 2010). This court construes pro se filings liberally, but even pro se
litigants must brief arguments to preserve them. Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993). Accordingly, the order of garnishment is
AFFIRMED.
AFFIRMED IN PART; DISMISSED IN PART.
3