United States v. Charging Crow

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 1, 2022
• Docket: 22-8011
• Status: Unpublished

Opinion

Appellate Case: 22-8011 Document: 010110776192 Date Filed: 12/01/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 1, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-8011 (D.C. No. 2:20-CR-00122-SWS-1) MARQUES ALAN CHARGING CROW, (D. Wyo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before McHUGH, MORITZ, and CARSON, Circuit Judges. _________________________________

Federal inmate Marques Alan Charging Crow, pro se, appeals the district

court’s order authorizing payment of restitution from his inmate trust account.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Mr. Charging Crow was convicted of several federal offenses in 2020. He was

sentenced to 456 months in prison and ordered to pay $8478.85 in restitution. On

November 4, 2021, the United States filed a “Motion To Authorize Payment From

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-8011 Document: 010110776192 Date Filed: 12/01/2022 Page: 2

Inmate Trust Account” requesting that the district court enter an order authorizing the

Bureau of Prisons “to turnover to the Clerk of Court $2,000.00 held in [Mr. Charging

Crow’s] inmate trust account as payment toward the Court ordered restitution.”

R., Vol. 1 at 48. That same day, the United States mailed a copy of the motion to

Mr. Charging Crow, first-class postage prepaid.

Under Local Rule 7.1(b)(1)(B), Mr. Charging Crow had “fourteen (14) days

after the filing of the motion to file a written response . . . in opposition to the

motion.” The Rule further provides that “[t]he Court may, in its discretion, consider

the failure of a responding party to file a timely response as a confession of the

motion.” Id.

Having received no response, on November 29, 2021, the district court entered

an order authorizing the payment. But on February 18, 2022, Mr. Charging Crow

filed a response in opposition to the motion to authorize payment. He alleged that the

source of the funds was an annuity payment from the Eastern Shoshone Native

American tribe, which “[is] exempt from seizure,” and asked the court “deny the

motion [for authorization] and restore the funds immediately.” R., Vol. 1 at 56. The

court denied the motion the same day it was filed. In addition to noting the belated

response, the court rejected Mr. Charging Crow’s “contention [on the merits] that his

Eastern Shoshone annuity payments are exempt from seizure to pay back restitution.”

Id. at 58-59 (footnote and internal quotation marks omitted). Mr. Charging Crow

appeals.

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“We review the district court’s interpretation of the statute de novo and its

decision to authorize payment under [18 U.S.C.] § 3664(n) for abuse of discretion.”

United States v. Kidd, 23 F.4th 781, 785 (8th Cir. 2022).

Mr. Charging Crow’s brief on appeal contains two arguments: (1) “[u]nder

26 U.S.C. § 6334(a)(6), the funds were exempt from collection because they were

dispersed from a Native American annuity fund”; and (2) he was denied due process

when the court “encumber[ed] . . . the funds without first notifying [him] and

providing an opportunity to be heard.” Aplt. Opening Br. at 3. He is mistaken.

“[A]n order of restitution . . . is a lien in favor of the United States on all

property and rights to property of the person [ordered to pay restitution] as if the

liability of the person . . . were a liability for a tax assessed under the Internal

Revenue Code.” 18 U.S.C. § 3613(c). To be sure, the Internal Revenue Code

exempts certain property from levy, including

[a]nnuity or pension payments under the Railroad Retirement Act, benefits under the Railroad Unemployment Insurance Act, special pension payments received by a person whose name has been entered on the Army, Navy, Air Force, and Coast Guard Medal of Honor roll . . ., and annuities based on retired or retainer pay under chapter 73 of title 10 of the United States Code. 26 U.S.C. § 6334(a)(6). But none of the exemptions include annuity payments from

a Native American tribe.

There is also no merit to Mr. Charging Crow’s argument that he was denied

due process. The United States served a copy of its motion on him, and the district

court promptly considered his belated response in opposition and entered its order.

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Nothing more was required. See Elliott v. Martinez, 675 F.3d 1241, 1245 (10th Cir.

2012) (“The core of due process is the right to notice and a meaningful opportunity to

be heard.” (internal quotation marks omitted)).

The judgment of the district court is affirmed. We grant Mr. Charging Crow’s

motion for leave to proceed on appeal without prepayment of costs and fees.

Entered for the Court

Joel M. Carson III Circuit Judge