United States v. Glenn

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 13, 2021
• Docket: 21-5010
• Status: Unpublished

Opinion

Appellate Case: 21-5010 Document: 010110617911 Date Filed: 12/13/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 13, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-5010 (D.C. No. 4:96-CR-00151-CVE-2) TERRY WAYNE GLENN, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, PHILLIPS, and EID, Circuit Judges. _________________________________

Terry Wayne Glenn, a federal prisoner proceeding pro se, appeals the district

court’s decision to transfer most of his inmate trust account to the government in

partial payment of a fine. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-5010 Document: 010110617911 Date Filed: 12/13/2021 Page: 2

I. BACKGROUND & PROCEDURAL HISTORY

In March 1997, a grand jury indicted Glenn and others on various counts

relating to drugs and guns, including a drug-distribution conspiracy in violation of

21 U.S.C. § 846. The grand jury charged that the relevant conspiracy existed from

sometime in 1992, the first overt acts took place in 1993, and the conspiracy

continued through early 1997.

In June 1997, Glenn pleaded guilty to the conspiracy count, among others. By

judgment filed November 3, 1997, the district court sentenced him to life

imprisonment and imposed a $25,000 fine, both as punishment on the conspiracy

count. The court specified that the fine was to be “paid in full immediately,” but

“[a]ny amount not paid immediately shall be paid while in custody through the

Bureau of Prisons’ Inmate Financial Responsibility Program.” R. vol. I at 37.

As of October 2020, Glenn had paid $3,717.57 toward his fine, mostly through

fixed, regular deductions from his inmate trust account. That month, Glenn filed a

motion with the sentencing court titled “Motion To Cease and Desist Order.” Id. at

39. Glenn informed the court that prison officials had placed an encumbrance on his

trust account, which at that time held about $9,100. Id. He argued that encumbering

his account without notice violated his due process rights, and he requested an order

that the government cease and desist “until such a time as Mr. Glenn has been

properly served and informed of the purpose for such actions.” Id.

The following month, the government moved for an order authorizing the

Bureau of Prisons to turn over the balance of Glenn’s trust account to the

2 Appellate Case: 21-5010 Document: 010110617911 Date Filed: 12/13/2021 Page: 3

government, to be applied toward his fine. According to the government, the account

held about $9,400.

The district court soon issued an order resolving both motions. The district

court apparently had access to Glenn’s account information, and it found that his trust

account held $9,269.81 as of the date of the order. The district court held that the

government had properly encumbered the funds pending the motion it eventually

filed, and that a federal statute entitled the government to seize the funds and apply

them toward Glenn’s fine. See 18 U.S.C. § 3664(n) (“If a person obligated to provide

restitution, or pay a fine, receives substantial resources from any source . . . during a

period of incarceration, such person shall be required to apply the value of such

resources to any restitution or fine still owed.”). The court therefore denied Glenn’s

motion and granted the government’s motion, except it awarded the government only

$8,769 (i.e., $500.81 less than the full account balance) “to avoid defendant’s

complete indigence.” R. vol. I at 57.

Glenn then filed a document titled “Civil Complaint under 28 U.S.C. § 1331.”

R. vol. I at 71 (capitalization normalized). Despite the title, he filed the document

with the sentencing court under his criminal case number. Glenn argued: (i) he had

not received timely and proper notice before being deprived of his money, in

violation of due process; and (ii) the government’s opportunity to collect his fine

ended in 2017, twenty years from judgment.

The district court construed Glenn’s filing as a “second motion to discharge

fines and fees,” id. at 79, and addressed only the twenty-year argument, which Glenn

3 Appellate Case: 21-5010 Document: 010110617911 Date Filed: 12/13/2021 Page: 4

derived from the pre-1996 version of 18 U.S.C. § 3613. At the time, the statute

stated, in relevant part, “[L]iability to pay a fine expires—(1) twenty years after the

entry of the judgment; or (2) upon the death of the individual fined.” 18 U.S.C.

§ 3613(b) (1994). The district court noted, however, that Congress amended the

statute effective April 24, 1996, to state (as it does today), “The liability to pay a fine

shall terminate the later of 20 years from the entry of judgment or 20 years after the

release from imprisonment of the person fined, or upon the death of the individual

fined.” See Mandatory Victims Restitution Act of 1996 (“MVRA”), Pub. L. No.

104-132, § 207(c)(3), 110 Stat. 1214 (emphasis added); see also id. § 211 (“The

amendments made by this subtitle shall, to the extent constitutionally permissible, be

effective for sentencing proceedings in cases in which the defendant is convicted on

or after the date of enactment of this Act.”). The district court found this amended

version of the statute applicable because Glenn was convicted in 1997. It further

found that, under the amendment, the twenty-year period had not yet begun to run

because Glenn was still in prison.

The district court accordingly denied the motion, and Glenn timely appealed.

II. ANALYSIS

Glenn argues the district court wrongly applied § 3613(b) as amended by the

MVRA. Glenn says the district court should have judged the amendment’s

applicability not by the date of his conviction (1997), but by the date of the first overt

acts charged in the indictment (1993). In support, he cites United States v. Owens,

70 F.3d 1118, 1130 (10th Cir. 1995), where the government argued one of the district

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court’s sentencing decisions was harmless error based on a Sentencing Guidelines

amendment. The amendment in question became effective in between the charged

conduct and the defendant’s sentencing, so the government’s argument required us to

examine whether the defendant’s ex post facto rights would have been violated had

the district court sentenced him under the amended guideline. See id.; see also U.S.

Const. art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”).

Although Glenn nowhere uses the phrase “ex post facto,” his citation to Owens

and the general character of his arguments convince us that he means to bring such a

challenge.1 “We review a challenge to a statute under the Ex Post Facto Clause de

novo.” Femedeer v. Haun, 227 F.3d 1244, 1248 (10th Cir. 2000).

Glenn provides no authority for the idea that his ex post facto rights

crystallized with the first overt acts charged in the indictment. Even assuming as

much for argument’s sake, Glenn also provides no support for the notion that an

extension of the amount of time after judgment in which the government can collect a

criminal fine creates an ex post facto issue. In the statute-of-limitations context, a

law violates the ex post facto clause if it revives an expired limitations period for

prosecuting the crime. See Stogner v. California, 539 U.S. 607, 610–21 (2003). The

briefing before us does not adequately address whether the prescribed time after

judgment to collect a criminal fine may be considered a statute of limitations in the

same sense.

1 “[P]risoners who proceed pro se . . . are entitled to liberal construction of their filings.” Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012). 5 Appellate Case: 21-5010 Document: 010110617911 Date Filed: 12/13/2021 Page: 6

Even if the answer is yes, the statutory term had not expired when Congress

extended it through the MVRA. Again, accepting Glenn’s proposition that the

twenty-year clock began to run in 1993, about seventeen years remained when

Congress enacted the MVRA in 1996. In United States v. Taliaferro, 979 F.2d 1399,

1402 (10th Cir. 1992), we held that “the application of an extended statute of

limitations to offenses occurring prior to the legislative extension, where the prior

and shorter statute of limitations has not run as of the date of such extension, does

not violate the ex post facto clause.” The Supreme Court’s Stogner decision

expressly avoided opining on this scenario. See 539 U.S. at 618 (“Even where courts

have upheld extensions of unexpired statutes of limitations (extensions that our

holding today does not affect), they have consistently distinguished situations where

limitations periods have expired.” (citation omitted)). Taliaferro therefore remains

good law.

In sum, even if

 § 3613(b) creates a statute of limitations, the extension of which is

potentially challengeable under the ex post facto clause; and

 Glenn’s ex post facto rights arose with his first overt act in 1993,

there was no ex post facto violation here because Congress extended the twenty-year

limitation before it expired in Glenn’s case. So the district court properly rejected

Glenn’s argument that it should have applied the pre-MVRA version of the statute.

Glenn also asserts that the government’s decision to seize his money “after

years of inactivity . . . violate[s] [his] rights to due process.” Opening Br. at 7. In 6 Appellate Case: 21-5010 Document: 010110617911 Date Filed: 12/13/2021 Page: 7

the district court, however, Glenn argued that the government violated his due

process rights because it failed to give him timely notice of the encumbrance. He did

not argue that due process eventually cuts off the government’s right to collect after

“years of inactivity.” We therefore do not reach this argument. See Schrock v.

Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013) (“Arguments that were not raised

below are waived for purposes of appeal.” (internal quotation marks omitted)).

III. CONCLUSION

We affirm the district court orders at issue here. We also grant Glenn’s motion

to proceed without prepayment of costs or fees.

Entered for the Court

Gregory A. Phillips Circuit Judge