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United States v. Daniels

United States District Court, N.D. Oklahoma

April 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NYESHI LESHEA DANIELS, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

         Now before the Court is the report and recommendation of Magistrate Judge T. Lane Wilson, recommending that the Court grant in part defendant's motion to prohibit the government from taking her tax refund (Dkt. # 43). The government objects to the report and recommendation, arguing that it is based on a misinterpretation of the Tenth Circuit's holding in United States v. Martinez, 812 F.3d 1200 (10th Cir. 2015). Dkt. # 55. Defendant responds, arguing that the Court should adopt the magistrate judge's report and recommendation. Dkt. # 56.

         I.

         On May 27, 2015, defendant plead guilty to one count of conspiracy in violation of 18 U.S.C. § 371 and one count of theft of government property in violation of 18 U.S.C. § 641. Dkt. # 15. On May 3, 2016, the Court sentenced defendant to 60 months probation as to each count, to run concurrently, and restitution in the amount of $60, 738.83. Dkt. # 39. At sentencing, the Court stated the following:

Any monetary penalty is due in full immediately but payable on a schedule to commence no later than 60 days following imposition of sentence in equal monthly payments of $25 or 10% of net income, that is take home pay, whichever is greater, over the duration of the term of probation and thereafter as prescribed by law for as long as some debt remains. Notwithstanding establishment of a payment schedule, nothing shall prohibit the United States from executing or levying upon property of the defendant discovered before or after the date of this Judgment.

         Oral Pronouncement of Judgment, at 9:47-48, United States v. Daniels, 15-CR-096-001-CVE (May 3, 2016). The written judgement contains a special instructions section that states:

Any monetary penalty is due in full immediately, but payable on a schedule to commence no later than 60 days following imposition of sentence in equal monthly payments of $50 or 10% of net income (take home pay), whichever is greater, over the duration of the term of probation and thereafter as prescribed by law for as long as some debt remains. Notwithstanding establishment of a payment schedule, nothing shall prohibit the United States from executing or levying upon property of the defendant discovered before or after the date of this Judgment.

Dkt. # 40, at 5.

         On May 5, 2016, the government mailed defendant a notice of the government's intent to offset defendant's debt with the Treasury Offset Program (TOP). Dkt. # 47-4. The notice was mailed to the address for defendant on file at that time with the probation office. Dkt. # 47-5, at 1-2. The notice included the amount owed and identified this case as the origin of the debt. Dkt. # 47-4, at 1. The notice also informed defendant about TOP and notified her that she had 60 days to object to the referral of her debt to TOP. Id. Defendant now asks the Court to prohibit the government from intercepting her tax refund. Dkt. # 43.

         II.

         Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim to a magistrate judge for a report and recommendation. However, the parties may object to the magistrate judge's recommendation within 14 days of service of the recommendation. Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega v. Suthers, 195 F.3d 573, 579 (10th Cir. 1999). The Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court may accept, reject, or modify the report and recommendation of the magistrate judge in whole or in part. Fed.R.Civ.P. 72(b).

         III.

         Defendant argues that the government may not take her tax refund because she did not receive adequate notice and her tax refund is exempt from garnishment. Dkt. # 43, at 5. The government responds, arguing that it provided notice of its intent to include defendant's debt in TOP, that the government may utilize the TOP program to offset defendant's debt with her tax refund, and that defendant must exhaust her ...


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