United States v. King

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 27, 2004

Charles R. Fulbruge III
Clerk
No. 03-40705
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD KING, JR., also known as
Charles L. Jackson, also known
as Junior,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CR-93-6

Before GARWOOD, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

Edward King, Jr., federal prisoner # 60210-079, is currently

serving a 240-month term of imprisonment, to be followed by a five-

year term of supervised release, for his conviction for conspiring

to possess with intent to distribute cocaine. The district court

*
Pursuant to 5TH CIR. R. 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opinion should not be published and is not precedent except under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 CIR. R. 47.5.4.
also sentenced King to a $50,000 fine, which the judgment, entered

in 1995, provided “shall be paid in full immediately.”

On March 17, 2003, King filed in the sentencing court a

“Petition for Release of Innocent Owner Interest in Property” (“the

Petition”) in the district court, seeking the removal of judgment

liens filed against certain real property. The government filed

its response on March 28, 2003. The district court denied the

Petition on March 31, 2003. The district court on April 23, 2003

granted the Government’s April 3, 2003 application for a writ of

execution (on a 61.034 acre tract in Limestone County, Texas)

pursuant to provisions of the Fair Debt Collection Practices Act

(FDCPA), 28 U.S.C. § 3001, et seq., and the writ issued on April

24, 2003. King filed his notice of appeal in May 2003. We

dismissed the appeal for failure to prosecute in September 2003,

but reinstated it in November 2003.

In his appeal, King challenges the denial of the March 17,

2003 Petition and the issuance of the April 2003 writ of execution.

With respect to the April 2003 writ of execution, it appears

that the case is moot. The record (pp. 332-52) reflects that on

October 3, 2003, the United States filed a “Second Application for

Writ of Execution” alleging that “the previous writ of execution

issued on April 24, 2003 has expired” pursuant to “28 [U.S.C.] §

3203(d)(C)(i) which states that the writ shall be returned not more

than 90 days after the date of issuance if levy is not made.” A

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second Writ of Execution (on the same tract as the April 24, 2003

writ) was issued October 7, 2003. King has not filed any notice of

appeal subsequent to May 2003. As the April 24, 2003 writ has

expired without levy all matters relating to it are moot, and the

appeal as to it is dismissed as moot.

With respect to the March 31, 2003 denial of the March 17,

2003 Petition no reversible error is shown as to any contention

properly and timely raised by King below and on appeal, nor is any

plain error warranting reversal otherwise shown by King on this

appeal. Under 18 U.S.C. § 3613(e) a criminal judgment imposing a

fine constitutes “a lien,” arising on the entry of the judgment,

“in favor the United States on all property and rights to property

of the person fined as if the liability of the person fined were a

liability for a tax assessed under the Internal Revenue Code of

1986.” Under 18 U.S.C. § 3613(d), upon filing a notice of lien “in

the manner in which a notice of tax lien would be filed . . . the

lien shall be valid against any purchaser, holder of a security

interest, mechanic’s lien or judgment lien creditor” with certain

specified exceptions. King admits that in excess of $49,000

remains owing on his fine. He does not claim that any of his

interest in the property is exempt. The March 17, 2003 Petition

seeks, as its name implies, to release the interest of King’s wife

in the properties in his name from the lien. King has no standing

to invoke his wife’s interests, nor any authority to represent his

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wife (and the March 17, 2003 Petition alleges nothing tending to

show or even suggesting such standing or that King is authorized to

represent his wife or that he is an attorney). Although the March

17, 2003 Petition does allege that one of the properties mentioned

therein (“the property in Limestone County”) “should be sufficient

collateral for the amount of the fine,” it does not assert any

legal significance of that fact. King’s argument on appeal

concerning 28 U.S.C. § 3102(a)(2) is made for the first time on

appeal and presents no clear or plain error, and hence does not

warrant reversal. Highland Ins. Co. v. National Union Fire Ins.

Co., 27 F.3d 1027, 1031-32 (5th Cir. 1994). Indeed, that argument

presents no error at all, as it is evident from section 3102(f)(3)

that section 3102 deals only with pre-judgment attachment (section

3102 is part of “Subchapter B – Prejudgment Remedies;”

postjudgment liens and remedies are addressed in sections 3201-

3206, “Subchapter C – Postjudgment Remedies”). We are aware of no

authority that the government’s lien to secure any outstanding,

unpaid portion of a fine under a final judgment of conviction may

not extend to property worth more than the outstanding amount of

the fine. Likewise, King’s argument, made for the first time on

appeal, that the existence of the lien on his property of a value

in excess of the amount outstanding on his fine renders his fine or

the lien a constitutionally excessive punishment presents no plain

or clear error nor indeed any error at all. The district court’s

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order denying the March 17, 2003 Petition is affirmed.

The appeal is DISMISSED AS MOOT so far as it challenges the

April 24, 2003 writ of execution (and/or the district court’s April

23, 2003 order granting the government’s motion to issue said

writ); the March 31, 2003 order of the district court is AFFIRMED.1

1
It is a close question whether King’s appeal is from any
final decision of the district court giving rise to our appellate
jurisdiction under 28 U.S.C. § 1291. “Because [King] cannot
prevail, regardless of whether we have jurisdiction, we [again]
pretermit the jurisdictional issue.” United States v. Weathersby,
958 F.2d 65, 66 (5th Cir. 1992) (citing Norton v. Mathews, 427 U.S.
524, 532 (1976)).

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