United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S REQUEST FOR RELIEF FROM
RESTITUTION [RE: ECF 208]
LABSON FREEMAN United States District Judge
the Court is Defendant Dewey C. Baker's request for
relief from making restitution payments. Mot., ECF 208. The
Government opposes Mr. Baker's request. The Court has
considered all submissions filed by the parties in support or
opposition to the motion, the relevant portions of the
record, and the applicable law. For the reasons discussed
below, the Court DENIES Mr. Baker's request.
Baker pled guilty to three counts of bank robbery with a
dangerous weapon, 18 U.S.C. § 2113(a), (d); one count of
unarmed bank robbery, 18 U.S.C. § 2113(a); one count of
armed post office robbery, 18 U.S.C. § 2114; three
counts of use/carry of a firearm during a crime, 18 U.S.C.
§ 924(c)(1); and one count of felon in possession of a
firearm, 18 U.S.C. § 922(g). ECF 107. On December 9,
1992, the court sentenced Mr. Baker to a total term of
incarceration of 345 months. ECF 115, 116. The sentence also
required Mr. Baker to pay restitution in the amount of $21,
086. Opp'n 2, ECF 210.
Baker was released from the Bureau of Prisons
(“BOP”) in 2016, and has since been supervised by
the U.S. Probation Office in the Central District of
California. Id. Mr. Baker reported to his probation
officer that he would be receiving $2, 900 in veterans
benefits (“VA benefits”) every month, beginning
in January 2017. Mem. from U.S. Probation Office 1 (April 27,
2017). Additionally, Mr. Baker had approximately $8, 500 in
savings while in the BOP. Id. Mr. Baker is expected
to pay $400 per month in rent plus living expenses.
Id. Based on the assessment of Mr. Baker's
ability to pay, he and his probation officer reached an
informal agreement to pay $100 per month toward the
restitution balance. Id. In February 2017, Mr. Baker
reported to his probation officer that he was having
difficulty getting his VA benefits, so his probation officer
advised Mr. Baker that he could pay $25 per month until he
began receiving his benefits. Id.
February 9, 2017, Mr. Baker filed a letter with the Court.
Mot. In the letter, Mr. Baker states that he is surviving on
VA benefits and does not expect to have any other source of
income in the future. Id. at 2. Mr. Baker contends
that he should be excused from further restitution payments
because liens and attachments cannot be made on veteran
benefits. Id. The Government disagrees, and argues
first that it is not using a legal process to obtain the
restitution from Mr. Baker's VA benefits, and thus, Mr.
Baker's argument lacks merit. Opp'n 2. The Government
further contends that even if it were to impose a lien or
attachment on Mr. Baker's VA benefits, the law permits it
to do so. Id. The Court now considers Mr.
order of restitution is a lien in favor of the United States
on all property and rights to property of the defendant. 18
U.S.C. § 3613(c). Further, an order of restitution may
be enforced by the United States in the same manner that the
United States recovers fines or “by all other available
and reasonable means.” 18 U.S.C. §
3664(m)(1)(A)(i). Accordingly, the Court cannot agree that
the Government is not using a legal process to obtain the
restitution. The Court must thus determine whether the
Government may impose a lien or attachment on Mr. Baker's
Mr. Baker does not cite any authority in his motion, in his
reply he makes plain that his claim relies on 38 U.S.C.
§ 5301. Reply ISO Mot. (“Reply”) 2,
ECF 214. Mr. Baker asserts that pursuant to section 5301, his
VA benefits are exempt from collection by the Government for
the purposes of restitution. Mot. 2; Reply 2.
5301(a)(1) states in pertinent part:
Payments of benefits due or to become due under any law
administered by the Secretary shall not be assignable except
to the extent specifically authorized by law, and such
payments made to, or on account of, a beneficiary shall be
exempt from taxation, shall be exempt from the claim of
creditors, and shall not be liable to attachment, levy, or
seizure by or under any legal or equitable process whatever,
either before or after receipt by the beneficiary. The
preceding sentence shall not apply to claims of the United
States arising under such laws....
38 U.S.C. § 5301(a)(1). Although there is scant case
authority interpreting this provision, the statutory language
plainly exempts claims by the United States. Id.;
see also United States v. Poff, No. CR09-160, 2016
WL 3079001, at *4 (W.D. Wash. May 31, 2016); Metcalf v.
United States, No. 12-518C, 2013 WL 1517821, at *4 n.5
(Fed. Cl. Apr. 15, 2013) (stating that Section 5301(a)(1)
“eliminate[s] any bar to the Federal Government
attaching or seizing VA benefits.”); Funeral Fin.
Servs., Ltd. v. United States, No. 98 C 7905, 2000 WL
91919, at *2 n.1 (N.D. Ill. Jan. 18, 2000), aff'd sub
nom. Funeral Fin. Sys. v. United States, 234 F.3d 1015
(7th Cir. 2000) (“[T]he provision seems to exempt
claims of the United States from the general ban on creditors
making claims on the benefits.”). Thus, the exemption
in Section 5301(a)(1) does not apply to the Government's
reply, Mr. Baker asserts, citing 18 U.S.C. § 3613(b),
that the restitution order is no longer enforceable because
it was entered more than 20 years ago. Reply 1. By requiring
him to continue making payments pursuant to the restitution
order, Mr. Baker claims the Government is wrongly applying
the terms of the Mandatory Victim Restitution Act
(“MVRA”), which was not in force at the time Mr.
Baker was sentenced. Id. Because Mr. Baker did not
raise the issue in the request presently before the Court,
the Court requested the Government file a sur reply to
respond to this argument. ECF 216. As the Government points
out in its sur reply, the Ninth Circuit squarely addressed
this issue in United States v. Blackwell, 852 F.3d
1164 (9th Cir. 2017), and held that the MVRA properly applied
to those sentenced before it was enacted. United States'
Response to Def.'s Request to Set Aside Restitution Order
Under 18 U.S.C. Section 3613(b), at 2, ECF 218. Accordingly,
the Court finds Mr. Baker's argument meritless. See
Blackwell, 852 F.3d at 1165 (applying MVRA to defendant
sentenced in 1993).
on the foregoing, the Court DENIES Mr. Baker's request
for relief from restitution payments. The Clerk shall file
the Probation ...