USA . Alberto Gomez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 7, 2018
• Docket: 17-14879
• Status: Unpublished

Opinion

Case: 17-14879 Date Filed: 08/07/2018 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14879 Non-Argument Calendar ________________________

D.C. Docket No. 1:14-cr-20717-RNS-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERTO GOMEZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(August 7, 2018) Case: 17-14879 Date Filed: 08/07/2018 Page: 2 of 3

Before WILSON, JORDAN and BLACK, Circuit Judges.

PER CURIAM:

Alberto Gomez, a federal prisoner proceeding pro se, appeals the district

court’s order overruling his objections to the writ of execution against his property

and denying his request for a hearing. On appeal, Gomez contends he is entitled to

a hearing pursuant to 28 U.S.C. § 3202(d). After review,1 we reverse and remand

for further proceedings consistent with this opinion.

“The [FDCPA] provides the exclusive civil procedures for the United States

to obtain satisfaction of a judgment in a criminal proceeding that imposes a fine,

assessment, penalty, [or] restitution in favor of the United States.” United States v.

Duran, 701 F.3d 912, 915 (11th Cir. 2012) (quotation marks omitted) (alteration in

original). The FDCPA permits the government to satisfy a judgment by obtaining

a writ of execution and levying on all property in which the debtor has a

“substantial nonexempt interest.” Id. (citing 28 U.S.C. §§ 3202(a), 3203). The

debtor may request a hearing within 20 days of receiving notice of the writ of

execution, and if he does, the court that issued the writ “shall hold a hearing on

such motion.” 28 U.S.C. § 3202(d).

1 We review de novo issues of statutory interpretation, including the requirements of the Federal Debt Collection Procedures Act (FDCPA), 28 U.S.C. § 3001 et seq. United States v. Peters, 783 F.3d 1361, 1363 (11th Cir. 2015) (per curiam). 2 Case: 17-14879 Date Filed: 08/07/2018 Page: 3 of 3

The statute further provides the “issues at such hearing shall be limited” to

enumerated topics including the probable validity of any claim for exemption by

the judgment debtor and whether the Government has complied with statutory

notice requirements. Id. The district court denied Gomez’s request for a hearing,

reasoning that neither of those matters is at issue in the case given Gomez’s failure

to claim an exemption. But the verb “shall” in a statute is a command, which

creates an obligation not subject to judicial discretion. Peters, 783 F.3d at 1364.

Here, the district court erred in denying Gomez’s request for a hearing because the

statutory language mandates a hearing on a writ of execution when requested

within 20 days, and pursuant to Gomez’s affidavit, his request for a hearing was

timely. See 28 U.S.C. § 3202(d); Peters, 783 F.3d at 1364. The fact that Gomez

had not yet claimed an exemption ought not to have foreclosed his ability to make

such a claim at a hearing. Accordingly, we vacate and remand with instructions

for the district court to hold a hearing as timely requested by Gomez.

VACATED AND REMANDED.