text:
    UNITED STATES of America, Plaintiff-Appellee v. Nemessis BATES, also known as Nemesis Bates, also known as Nemo Bates, Defendant-Appellant
    No. 15-31087
    United States Court of Appeals, Fifth Circuit.
    Filed March 10, 2017

      Kevin G. Boitmann, Assistant U.S. Attorney, Diane Hollenshead Copes, Esq., Elizabeth A. Privitera, Assistant U.S. Attorneys, U.S. Attorney’s Office, New Orleans, LA, for Plaintiff-Appellee.
    Autumn Alycia Town, Law Office of Autumn Town, New Orleans, LA, for Defendant-Appellant.
    Nemessis Bates, Pro Se.
    Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge:

This is a murder-for-hire case. Nemesis “Nemo” Bates owned Nemo’s Carwash in New Orleans. In 2010, someone stole a significant amount of jewelry and $20,000 in cash from Bates. Bates reported the theft to the police and told them that he suspected his friend Christopher “Tiger” Smith was the culprit. On November 21, 2010, someone shot Tiger at least twenty times, killing him.

A federal grand jury indicted Bates on four counts: (1) solicitation to commit a crime of violence, in violation of 18 U.S.C. § 1958(a) and 18 U.S.C. § 373; (2) conspiracy to use interstate commerce facilities in the commission' of murder-for-hire, in violation of 18 U.S.C. § 1958(a) and 18 U.S.C. § 2; (3) causing death through the use of a firearm, in violation of 18 U.S.C. § 924(j)(l) and 18 U.S.C. § 2; and (4) conspiracy to possess firearms, in violation of 18 U.S.C. § 924(o). At trial, both sides agreed that Walter Porter was the actual shooter. The government advanced the theory that Bates hired Porter, along with Aaron Smith, to murder Tiger in exchange for $20,000, as retaliation for Tiger’s stealing his jewelry and money. The government presented twenty-one witnesses, including Anthony Comadore, Bates’s former cellmate, who testified concerning Bates’s alleged jailhouse confession. By contrast, Bates argued that Smith and Porter acted on their own accord as part of a conspiracy to extort money from Bates after the fact. The jury convicted Bates on all counts.

Pursuant to Federal Rule of Criminal Procedure 29, Bates moved for a judgment of acquittal on all counts. The district court denied his motion. Bates timely appealed, arguing that the district court (1) abused its discretion by allowing Comadore to testify and (2) erred by denying his motion for acquittal. For the reasons stated below, we AFFIRM the district court’s decision.

I.

Bates argues that the district court erred by allowing Comadore to testify at trial in violation of his Sixth Amendment right to counsel. The admissibility of witness testimony at trial is reviewed for abuse of discretion. United States v. Heard, 709 F.3d 413, 422 (5th Cir. 2013). The Supreme Court has held that the Sixth Amendment right to counsel is violated when the government “use[s] against [a criminal defendant] at his trial evidence of his own incriminating words, which federal agents ... deliberately elicited from him after he had been indicted and in the absence of his counsel.” Massiah, 377 U.S. at 206, 84 S.Ct. 1199. To allege a Massiah violation, a criminal defendant must establish that: (1) a Sixth Amendment right to counsel had attached; (2) an individual seeking the information was a government agent acting without the defendant’s counsel being present; and (3) that the agent deliberately elicited incriminating statements from the defendant. Henderson v. Quarterman, 460 F.3d 654, 664 (5th Cir. 2006). Under the Fifth Circuit’s two-prong test for determining whether an agency relationship exists between the government and a jailhouse informant, the defendant bears the burden of showing that “the informant: (1) was promised, reasonably led to believe, or actually received a benefit in exchange for soliciting information from the defendant; and (2) acted pursuant to instructions from the State, or otherwise submitted to the State’s control.” Creel v. Johnson, 162 F.3d 385, 393 (5th Cir. 1998).

Bates argues that “Comadore sought information from Mr. Bates in the hopes of receiving a benefit.” But soliciting information “in the hopes of’ receiving a benefit is not the same as soliciting information because you were “promised, reasonably led to believe, or actually received a benefit.” Id. Because Bates has failed to point to any evidence showing that the government affirmatively enticed Coma-dore to solicit any information from Bates, we cannot say the district court abused its discretion in allowing Comadore to testify.

II.

Bates also argues that we should reverse the district court’s denial of his motion for judgment of acquittal. We disagree. We review de novo a district court’s denial of a post-trial motion for a judgment of acquittal. United States v. Rojas Alvarez, 451 F.3d 320, 326 (5th Cir. 2006).

Bates first argues that this panel should overturn his conviction on all four counts because the evidence presented by the government was all “contradicted by either testimony or evidence presented by the defense at trial.” But the mere presence of some conflicting evidence in the record does not render a jury verdict improper. “It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.” United States v. Lage, 183 F.3d 374, 382 (5th Cir. 1999). In fact, “any conflict in the evidence must be resolved in favor of the jury’s verdict.” United States v. Lundy, 676 F.3d 444, 448 (5th Cir. 2012) (citing United States v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990)).

Bates also attacks the credibility of the government’s witnesses. In addition to his argument about the admissibility of Comadore’s testimony, he argues that “[Smith’s] credibility as a witness should be questioned” because of his prior convictions, significant drug problems, and admission that he would be willing to lie under oath. Likewise, he claims that the testimonies of his two ex-lovers should not be trusted because they both had reasons to lie. But these arguments are irrelevant. On appeal the panel is not permitted to assess the credibility of the witnesses— credibility determinations are the purview of the trier-of-fact. United States v. Owens, 683 F.3d 93, 101 (5th Cir. 2012). The witnesses’ criminal history, drug problems, trustworthiness, and past relationships with the defendant all came out at trial, and were presumably considered by the jury. Accordingly, both arguments fail.

III.

We conclude that the district court did not abuse its discretion in allowing Coma-dore to testify. We also AFFIRM the district court’s denial of Bates’s motion for judgment of acquittal.

      . Bates also sirgues that the district court erred by not holding a full evidentiary hearing to determine whether Comadore’s testimony was permissible under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Because Bates did not request an evidentiary hearing below or object to the lack of one, we review .this argument for plain error only. United States v. Castillo, 334 Fed.Appx. 698, 699 (5th Cir. 2009) (citing United States v. Washington, 480 F.3d 309, 313 (5th Cir. 2007)). Bates has failed to point to any case law indicating that a district court is required to hold a Massiah hearing sua sponte. Thus, even if we were to conclude that the district court erred or impinged on Bates’s substantial rights (which we do not), we could not conclude that such legal error was "clear or'obvious” or beyond "reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Accordingly, Bates’s argument fails.

      . Although he does not elaborate, Bates asserts that ''[t]he Government failed to prove all elements of the crimes charged.” Because he has failed to adequately develop this insufficiency argument, it is waived. "Failure of an appellant to properly argue or present issues in an appellate brief renders those issues abandoned.” United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    In the MATTER OF: William Douglas CARROLL and Carolyn K. Carroll, Debtors William Douglas Carroll; Carolyn K. Carroll; Pamela K. Alonso; Cynthia G. O’Neal, Appellants v. Samera L. Abide, Appellee
    No. 16-30996 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    FILED March 13, 2017

      William Douglas Carroll, Pro Se.
    Carolyn K. Carroll, Pro Se.
    Pamela K. Alonso, Pro Se.
    Cynthia G. O’Neal, Pro Se.
    Steven Paul Lemoine, Esq., Law Offices of Robert H. Schmolke, Baton Rouge, LA, for Appellee.
    Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
   PER CURIAM:

The bankruptcy court declared William Douglas Carroll, Carolyn ,K. Carroll, Pamela K. Alonso, and Cynthia G. O’Neal vexatious litigants and set forth a pre-filing injunction against them. It also sanctioned the Carrolls, jointly and severally, in the amount of $49,432. The district court affirmed, and we affirm for substantially the same reasons.

I.

Appellants in this matter are William Douglas Carroll and Carolyn K. Carroll (collectively, the Carrolls) and their daughters, Pamela K. Alonso and Cynthia G. O’Neal (collectively, the Carroll Daughters). The Carrolls filed their bankruptcy petition on May 21, 2008. RedPen Properties, L.L.C., whose membership consists solely of the Carrolls, filed its bankruptcy petition that same year. The trustee in both of these bankruptcy cases was Sam-era L. Abide, and the cases were substantially consolidated in 2014.

On October 5, 2015, Abide sought relief against the Carrolls and the Carroll Daughters due to their conduct in the bankruptcy cases. In granting Abide’s motion in part, the bankruptcy court carefully laid out the troublesome conduct of Appellants in a thorough, twenty-two-page opinion. The bankruptcy court detailed a series of notable actions by Appellants that demonstrated their pattern of harassment, which included: seeking to frustrate the sale of a five-acre tract of land, filings related to a movables adversary brought by the Carroll Daughters (“Movables Adversary”), orders . of contempt entered against Appellants, attempts to frustrate the sale of the Carrolls’ residence and movables, and two attempts to remove Abide that were wholly unsupported by evidence.

After recounting the bad faith conduct of Appellants, the bankruptcy court determined that “the Carrolls’ true motives [were] to harass the trustee and thereby delay the proper administration of the estate in the hope that they would be able to retain their assets, or make pursuit of the assets so unappealing that the trustee would be compelled to settle on terms favorable to the [appellants].” The court specifically found that Appellants were bad faith filers and noted that Appellants’ failure to pay previous contempt sanctions ordered against them “demonstrates that monetary sanctions alone will not deter them.” Accordingly, the bankruptcy court “enjoin[ed] them and anyone acting on their behalf from filing any pleading or document in this case or its associated cases or adversary proceedings, and from filing any future cases in [the Bankruptcy Court for the Middle District of Louisiana], without first obtaining bankruptcy court permission.” The bankruptcy court then assessed monetary sanctions, under 11 U.S.C. § 105, in the amount of $49,432 against the Carrolls. This figure represented the attorneys’ fees incurred “in defending the trustee removal motions and the injunction complaint, along with the Car-rolls’ motion for stay pending appeal.”

The Carrolls and the Carroll Daughters appealed to the district court, which affirmed the bankruptcy court’s order in a similarly detailed twenty-five-page opinion. On appeal to us, the Carrolls and the Carrol Daughters challenge the pre-filing injunction against them, and the Carrolls additionally challenge the imposition of monetary sanctions.

II.

Although it is not altogether clear whether jurisdiction is proper under 28 U.S.C. § 158, the bankruptcy court’s order is a collateral order under the Cohen doctrine. See Markwell v. Cty. of Bexar, 878 F.2d 899, 901 (5th Cir. 1989); see also Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995).

“We review the imposition of sanctions for an abuse of discretion.” Chaves, 47 F.3d at 156 (citation omitted). “A Bankruptcy Court does not abuse its discretion unless its ruling is based on an erroneous review of the law or on a clearly erroneous assessment of the evidence.” In re Yorkshire, LLC, 540 F.3d 328, 331 (5th Cir. 2008) (quoting Chaves, 47 F.3d at 156). Furthermore, we review the facts that form the basis of the court’s decision to sanction for clear error. FDIC v. Maxxam, Inc., 523 F.3d 566, 576-77 (5th Cir. 2008).

III.

We begin by noting the bankruptcy court has numerous tools by which to sanction the conduct of individuals. “Federal courts have inherent powers which include the authority to sanction a party or attorney when necessary to achieve the orderly and expeditious disposition of their dockets.” Scaife v. Associated Air Ctr. Inc., 100 F.3d 406, 411 (5th Cir. 1996) (citation omitted); see also Citizens Bank & Tr. Co. v. Case (In re Case), 937 F.2d 1014, 1023 (5th Cir. 1991). “Such powers may be exercised .only if essential to preserve the authority of the court and the sanction chosen must employ the least possible power adequate to the end proposed.” Nat’l Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 86 F.3d 464, 467 (5th Cir. 1996) (quoting Anderson v. Dunn, 19 U.S. 6 Wheat. 204, 231, 5 L.Ed. 242 (1821)). A court must make a specific finding of bad faith in order to impose sanctions under its inherent power. See Chaves, 47 F.3d at 156. Moreover, when sanctions are imposed under the inherent power, this court’s “investigation of legal and eviden-tiary sufficiency is particularly probing” and this court must “probe the record in detail to get at the underlying facts and ensure the legal sufficiency of their support for the district court’s more generalized finding of 'bad faith.’” Crowe v. Smith, 151 F.3d 217, 236 (5th Cir. 1998).

Federal courts also have authority to enjoin vexatious litigants under the All Writs Act, 28 U.S.C. § 1651. See Newby v. Enron Corp., 302 F.3d 295, 302 (5th Cir. 2002). Moreover, under 11 U.S.C. § 105, “a bankruptcy court can issue any order, including a civil contempt order, necessary or appropriate to carry out the provisions of the bankruptcy code.” Placid Refining Co. v. Terrebonne Fuel and Lube, Inc. (In re Terrebonne Fuel & Lube, Inc.), 108 F.3d 609, 613 (5th Cir. 1997). When considering whether to enjoin future filings, the court must consider the circumstances of the case, including four factors:

(1) the party’s history of litigation, in particular whether he has filed vexatious, harassing, or duplicative lawsuits; (2) whether the party had a good faith basis for pursuing the litigation, or simply intended to harass; (3) the extent of the burden on the courts and other parties resulting from the party’s filings; and (4) the adequacy of alternative sanctions.

Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 189 (5th Cir. 2008) (quoting Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 818 (4th Cir. 2004)).

With these legal principles in mind, we turn to the arguments on appeal and'affirm for substantially the same reasons asserted by the district court. Addressing the pre-filing injunction first, the bankruptcy court considered the relevant factors in issuing its pre-filing injunction. See Baum, 513 F.3d at 189. To the extent that appellants maintain that sanctions cannot be imposed against them because they are pro se litigants, they are incorrect. See Farguson v. MBank Hous., N.A., 808 F.2d 358, 359 (5th Cir. 1986); see also Clark v. Mortenson, 93 Fed.Appx. 643, 652 (5th Cir. 2004).

To the extent that Appellants challenge the bankruptcy court’s finding that they acted in bad faith, our probing review of the record establishes that the finding of bad faith is well supported. As both the bankruptcy court and the district court meticulously explained, Appellants have engaged in conduct intended to harass and delay. Appellants’ suggestion that their conduct was not done in bad faith is belied by their repeated attempts to litigate issues that have been conclusively resolved against them or that they had no standing to assert and by their unsupported and multiple attempts to remove Abide as the trustee. Although it is correct that the conduct of the Carroll Daughters was less pervasive than that of the Carrolls, their conduct was still in bad faith. Specifically, the bankruptcy court discussed the Carroll Daughters’ conduct in the Movables Adversary, in which the district court had to hold the Carroll Daughters in contempt and order them to make Abide whole as to all costs involved in filing her motions to compel. Yet, the Carroll Daughters remained undeterred, persisted in their unsupported filings, and eventually triggered another motion for contempt by failing to pay the attorneys’ fees as ordered. At bottom, the record fully supports the bankruptcy court’s determination of bad faith, and Appellants have not established that any of the bankruptcy court’s findings were clearly erroneous.

We next address the bankruptcy court’s order that the Carrolls pay $49,432, which represents the amount of attorneys’ fees incurred by Abide in responding to certain instances of the Car-rolls’ bad faith conduct. “[Section 105] has been interpreted as supporting the inherent authority of the bankruptcy courts to impose civil sanctions for abuses of the bankruptcy process.” In re Clark, 223 F.3d 859, 864 (8th Cir. 2000) (citation omitted); see also In re Tucker, 224 F.3d 766, at *3 (5th Cir. 2000) (unpublished) (rejecting the argument that the bankruptcy court erred in holding that section 105 authorized the imposition of sanctions where the sanctioned individuals participated in an abuse of process). The Carrolls appear to argue that this sanction was erroneous because the estate has already incurred these attorneys’ fees. This argument misunderstands that the' purpose of ordering the Carrolls to pay these fees is to prevent the estate from bearing the costs of their vexatious conduct. Accordingly, the attorneys’ fees award is not erroneous.

AFFIRMED.

      . In the Movables Adversary, the Carroll Daughters sought to establish their ownership in certain antiques and other movable property that was in the Carrolls' possession at the time of the Carrolls’ bankruptcy filing. The Carroll Daughters claimed that this property was transferred to them in 2005. Due to concerns regarding the ability of the bankruptcy court to hear this claim under Stern v. Marshall, 564 U.S. 462, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), the district court withdrew the reference. The case was then heard by the district court, which, in granting summary judgment in favor of Abide, stated that it "seriously question[ed] the legality of the actions taken by [the Carroll Daughters] and the Carrolls.” We affirmed. Alonso v. Abide (In re RedPen Properties, L.L.C.), 568 Fed.Appx. 338 (5th Cir. 2014).

      . We need not decide if an award of attorneys' fees alone would constitute a collateral order in this context because here the bankruptcy court’s order labeled the Appellants vexatious litigants and enjoined them from future filings. See generally Ali v. Quarterman, 607 F.3d 1046, 1048 (5th Cir. 2010).

      . Construing their pro se brief liberally, see Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988), Appellants maintain that the bankruptcy court could not sanction the Carroll Daughters for conduct that occurred before the district court in the Movables Adversary once the order of reference was withdrawn because the Movables Adversary is a separate proceeding. We have determined that "the inherent power does not extend to collateral proceedings that do not threaten the court's own judicial authority or proceedings.” Positive Software Sols., Inc. v. New Century Mortg. Corp., 619 F.3d 458, 460-61 (5th Cir. 2010) (quoting Maxxam, 523 F.3d at 593). Here, by contrast, the conduct by the Carroll Daughters in the district court occurred in the same bankruptcy case. See 2 Collier on Bankruptcy § 301.03 (Alan N. Res-nick & Henry J. Sommer eds., 16th ed. 2015) ("The term 'case' ... refers to the overall spectrum of legal action taken under one of the debtor relief chapters. It is the widest term functionally. The term 'proceeding,' by contrast, refers to any particular action raised or commenced within the case, including motions and adversary proceedings, whether such actions raise disputed or consensual matters.”). Accordingly, the bankruptcy court could sanction the Carroll Daughters for their conduct in the Movables Adversary.


author: JAMES L. DENNIS, Circuit Judge:'

text:
    In the MATTER OF: Christon JACKSON, Debtor Tower Credit, Incorporated, Appellant v. Martin A. Schott, Appellee
    No. 16-30274
    United States Court of Appeals, Fifth Circuit.
    FILED March 13, 2017
    Richard D. Bankston, Baton Rouge, LA, for Appellant.
    Martin A. Schott, Pro Se.
    Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
   JAMES L. DENNIS, Circuit Judge:'

In 2009, Tower Credit, Incorporated, obtained a money judgment in a Louisiana state court against Christon Jackson. Seeking to collect, Tower obtained a garnishment order, served it on Jackson’s employer on January 19, 2012, and began collecting Jackson’s garnished wages. On November 17, 2012, Jackson filed for Chapter 7 bankruptcy protection in the United States Bankruptcy Court for the Middle District of Louisiana. The bankruptcy court appointed Martin Schott as trustee to administer Jackson’s estate. In 2014, the trustee initiated this adversary action, seeking to void the garnishments collected by Tower within ninety days pri- or to Jackson’s filing for bankruptcy as preferential transfers pursuant to 11 U.S.C. § 547(b). The trustee initially sought the return of $2,034.81, but the parties have since stipulated that the actual amount at issue is $1,756.04. The bankruptcy court ultimately granted summary judgment in favor of the trustee, and the district court affirmed on appeal. Tower timely appealed to this court, arguing that the garnished wages should be considered transferred on the date the garnishment order was served, before the preference period, and therefore that the trustee is not entitled to recover them. We disagree and therefore affirm.

DISCUSSION

On appeal in a bankruptcy case, we apply the same standard of review that the district court applied: “[T]he bankruptcy court’s factual findings are reviewed for clear error; its legal conclusions and mixed questions of fact and law, de novo.” In re Mercer, 246 F.3d 391, 402 (5th Cir. 2001) (italics removed). Section 547(b) provides, in relevant part:

[T]he trustee may avoid any transfer of an interest of the debtor in property—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition; ...
(B) ...
(5) that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.

Tower contests only the fourth element, arguing that Jackson’s interest in the garnished wages was transferred to Tower when it served the garnishment order on Jackson’s employer, more than ninety days before the filing of Jackson’s petition.

‘What constitutes a transfer and when it is complete is a matter of federal law.” Barnhill v. Johnson, 503 U.S. 393, 397, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992) (citation and internal quotation marks omitted). State law generally determines the nature of property interests involved in purported transfers, but only “[i]n the absence of controlling federal law.” See id. at 398, 112 S.Ct. 1386; see also Local Loan Co. v. Hunt, 292 U.S. 234, 243-45, 54 S.Ct. 695, 78 L.Ed. 1230 (1934) (declining to adhere to an Illinois state-law fiction that “an assignment of future wages creates a lien effective from the date of the assignment, which is not invalidated by the assignor’s discharge in bankruptcy” and stating, “Local rules subversive [to the general purpose and policy of the bankruptcy act] cannot be accepted as controlling the action of a federal court.”).

Section 547(e) provides the governing principles that determine the timing of a transfer. As relevant to the instant case, a transfer is generally made at the time it is “perfected,” § 547(e)(2)(B), which, in the context of non-real property, occurs when “a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee.” § 547(e)(1)(B). However, § 547(e)(3) quali-fíes that general principle and provides that “a transfer is not made until the debtor has acquired rights in the property transferred.” See also In re Latham, 823 F.2d 108, 110 (5th Cir. 1987) (stating, “[A] lien that is perfected outside the preference period does not attach to property rights transferred to the Debtor during the preference period” and citing Tabita v. IRS, 38 B.R. 511, 513 (E.D. Pa. 1984) for the proposition that “wages earned within preference period are subject to preference even though writ of attachment was served beyond the preference period”).

Tower contends that as soon as it served the garnishment order on Jackson’s employer, no creditor on a simple contract could have acquired a judicial lien superior to Tower’s interest. Thus, it .argues that the transfer of the interest in Jackson’s garnished wages was perfected at that time pursuant to § 547(e)(1)(B). That would be true, except for the additional instruction of § 547(e)(3), which requires the debtor to have rights in the property before any transfer can occur.

In Local Loan, the Supreme Court held, albeit in the context of a bankruptcy discharge dispute, “The earning power of an individual is the power to create property; but it is not translated into property within the meaning of the Bankruptcy Act until it has brought earnings into existence.” 292 U.S. at 243, 54 S.Ct. 695. Thus, as the Sixth Circuit explained in In re Morehead, 249 F.3d 445, 448 (6th Cir. 2001), in the wage garnishment context, a debtor cannot logically obtain rights in her future wages until she performs the services that entitle her to receive those wages. 249 F.3d at 448. The Morehead court therefore held that “when wages are earned during the preference period, transfer of those wages pursuant to a garnishment order is avoidable under ... § 547(b)[].” Id. In other words, because Jackson had not earned the disputed wages before the ninety-day preference period, he had acquired no rights to those wages and, under § 547(e)(3), could not have transferred such rights to Tower prior to the preference period. See Morehead, 249 F.3d at 448; see also Local Loan, 292 U.S. at 243, 54 S.Ct. 695; Latham, 823 F.2d at 110.

Tower asserts that Morehead is “limited to states wherein the transfer does not occur when the garnishment is served.” But it is federal law, not state law, that determines when the transfer occurred, Barnhill, 503 U.S. at 397, 112 S.Ct. 1386, and § 547(e)(3) requires that a debtor acquire rights in the property in question before any transfer is made. That is not to say that state law is never relevant to the application of § 547(e)(3); indeed, in the absence of controlling federal law, state law will determine whether the debtor had acquired rights in the property. See Barn hill, 503 U.S. at 397, 112 S.Ct. 1386. There is controlling federal law in the context of a debtor’s rights in future wages, however, and it provides that “[t]he earning power of an individual ... is not translated into property ... until it has brought earnings into existence.” See Local loan, 292 U.S. at 243, 54 S.Ct. 695. Moreover, Tower has not even contended that Louisiana law provides employees with present rights in their unearned, future wages.

Tower cites three cases from the 1980s in which other circuits held that a transfer of garnished wages occurred at the time the garnishment was served on the employer. See In re Conner, 733 F.2d 1560 (11th Cir. 1984); In re Coppie, 728 F.2d 951 (7th Cir. 1984); In re Riddervold, 647 F.2d 342 (2d Cir. 1981). In Conner, the Eleventh Circuit relied on § 547(e)(1)(B) and held that, because no contract creditor could obtain a superior judicial lien after a garnishment was executed, the transfer occurred at the time of the execution. 733 F.2d at 1562. In Riddervold, the Second Circuit held that at the time the garnishment was executed it created a “continuing levy,” which under New York law acted as a novation of all of the debtor’s rights in his wages, and thus that there was no transfer during the preference period. 647 F.2d at 346. Importantly, neither Ridder-vold nor Conner even considered the effect of § 547(e)(3), and both predated Barnhill, in which the Supreme Court held that federal law governs the determination of whether and when a transfer occurred. See Morehead, 249 F.3d at 448-49 (discussing and rejecting Riddervold and Conner).

In Coppie, the Seventh Circuit held, similar to Riddervold, that the execution of a garnishment acted as a novation of all of the debtor’s interests in the wages under Indiana law so that there could not have been a transfer within the preference period. 728 F.2d at 953. Addressing § 547(e)(3), the court found it inapplicable because the debtor “will never acquire rights in the portion of his or her wages to be garnished in the future” as those were “irrevocably transferred to the garnishment plaintiff.” Id.

In our view, the Coppie court’s conclusion that the debtor’s rights in his future wages were “irrevocably transferred” at the time the garnishment order was entered conflicts with § 547(e)(3)’s instruction that no transfer of an interest in property is made before the debtor acquires rights in the property. Like Conner and Riddervold, Coppie predated Barnhill, and it appears that the Seventh Circuit itself no longer considers Coppie’s holding good law: that court subsequently concluded that pre-Barnhill cases holding that a transfer occurs when a notice of garnishment is served, including Conner, did not survive the Supreme Court’s decision in Barnhill. See In re Freedom Grp., Inc., 50 F.3d 408, 412 (7th Cir. 1995).

The trio of cases cited by Tower has been roundly criticized on the grounds discussed. See, e.g., Morehead, 249 F.3d at 448-49; Freedom Group, 50 F.3d at 412; In re White, 258 B.R. 129, 134 (Bankr. D.N.J. 2001); In re Mays, 256 B.R. 555, at 560 n.7; Tabita, 38 B.R. at 513; In re Dunn, 56 B.R. 275, 278 (Bankr. M.D. La. 1985); In re Perry, 48 B.R. 591, 598 (Bankr. M.D. Tenn. 1985); see also 5 Collier on Bankruptcy ¶ 547.05 (16th ed.) (“The analysis of these three appellate courts is wrong.... The timing scheme in section 547(e) does not exclude garnishment liens. Until the debtor earns the wages, there is no property that the creditor can garnish or that the debtor can transfer. The creditor’s right to the particular funds that are garnished . exists only because the debtor is entitled to be paid those funds as wages; it does not exist unless the debtor first acquires the right to be paid.”). We join the other courts that have rejected the cases cited by Tower and decline to follow those cases.

The combination of Supreme Court precedent and the overwhelming weight of persuasive authority applying § 547(e)(3) make clear that a debtor’s wages cannot be transferred until they are earned. Thus, we hold that a creditor’s collection of garnished wages earned during the preference period is an avoidable transfer made during the preference period even if the garnishment was served prior to that period. We therefore AFFIRM the district court’s judgment.

      . Latham’s favorable citation of Tabita for this proposition is arguably dicta, as Latham did not involve wage garnishment. See 823 F.2d at 109.

      . The Bankruptcy Act was repealed in 1978 and replaced by the current Bankruptcy Code. See Bankruptcy Reform Act of 1978, 112 Stat. 2549, 2682. However, the Court in Local Loan grounded its holding in the purpose of the Bankruptcy Act to “relieve the honest debtor from the weight of oppressive indebtedness, and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes.” See 292 U.S. 234 at 244, 54 S.Ct. 695 (internal quotation marks omitted). This remains a primary purpose of the Bankruptcy Code as well, and the courts have continued to cite and apply Local Loan for this proposition. See, e.g., Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Shcolnik, 670 F.3d 624, 632 (5th Cir. 2012). We therefore conclude that Local Loan’s holding that unearned, future wages are not property within the meaning of the bankruptcy laws remains valid and binding upon us.


author: KAREN NELSON MOORE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joshua Michael SIZEMORE, Defendant-Appellant.
    No. 16-5700
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: March 8, 2017

      ON BRIEF: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Brooklyn Sawyers, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.
    Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
   OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Joshua Sizemore appeals the restitution order entered as part of his sentence for involuntary manslaughter. In this appeal, Sizemore raises two issues concerning the district court’s order of full restitution and the district court’s refusal to reduce the restitution by settlement amounts paid to certain victims by Sizemore’s automobile insurance company. For the reasons stated below, we AFFIRM.

I. BACKGROUND

During the early morning hours of October 4, 2014, Joshua Sizemore was driving his car at a high rate of speed through Great Smoky Mountains National Park. R. 2 (Plea Agreement) (Page ID #4). In addition to Sizemore, the car had three passengers: Sherice Mathes, Brent Clapper, and Ashley Trent. Id. All of the car’s occupants, including Sizemore, had been drinking alcohol. Id. At approximately 1:35 a.m., Sizemore crashed the vehiclé, killing Trent, and seriously injuring Mathes and Clapper. Id. The Tennessee Highway Patrol later determined that the Defendant “was driving approximately 96 miles per hour five seconds prior to .the crash and approximately 97 miles per hour two seconds prior to the crash.” Id. The speed limit on that particular stretch of road was 45 miles per hour. Id.

On November 2, 2015, the United States Attorney for the Eastern District of Tennessee at Knoxville filed an information charging Sizemore with involuntary manslaughter in violation of 18 U.S.C. §§ 1112 and 7(3). R. 1 (Information) (Page ID #1-2). Sizemore waived indictment and pleaded guilty to the one-count information. R. 9 (Waiver of Indictment) (Page ID #19); R. 39 (Plea Hr’g Tr. at 12) (Page ID #539). As a condition of his plea, Sizemore agreed that the district court would order restitution “for any loss caused to: (1) the victims of any offense charged in this case (including dismissed counts); and (2) the victims of any criminal activity that was part of the same course of conduct or common scheme or plan as the defendant’s charged offenses.” R. 2 (Plea Agreement at 4) (Page ID #6). The parties later agreed in an addendum to the plea agreement that Sizemore would not appeal the award of $173,451.43 in restitution to be paid to Ashley Trent’s minor daughter, A.H., for Trent’s lost wages. R. 27 (Plea Agreement Addendum) (Page ID #376).

The probation office prepared a Presen-tence Investigation Report (“PSR”), R. 26 (PSR) (Page ID #362), and the district court held a sentencing hearing on May 4, 2016, R. 40 (Sent. H’rg Tr. at 1) (Page ID #547). The only contested issue at Size-more’s sentencing was restitution. Id. at Page ID #550. The probation office assessed restitution, pursuant to 18 U.S.C. § 3663, in the amount of $230,839.37. R. 26 (PSR at 13) (Page ID #374). Restitution was calculated jn the following allotments: $9,000 to Paul Mahan for Ashley Trent’s funeral expenses; $29,808.27 to Blue Cross Blue Shield Insurance as to Brent Clapper; $3,990.74 to Brent Clapper; $11,787.76 to Blue Cross Blue Shield Insurance as to Sherice Mathes; $2,801.17 to Farm Bureau Insurance as to Sherice Mathes; and $173,451.43 to A.H., Ashley Trent’s minor child. Sizemore agreed to the full restitution amount as to A.H., but did not agree to any of the other allotments. R. 40 (Sent. Hr’g Tr. at 7-8) (Page ID #553-554). Specifically, Sizemore argued that the court should not order him to pay $9,000 to Paul Mahan for funeral expenses because Mr. Mahan did not seek any restitution from Sizemore. R. 16 (Def. Sent. Mem. at 12) (Page ID #157). Sizemore further argued that because Farm Bureau Insurance paid $12,500 each to Clapper and to Mathes for their losses, those payments should be credited to any restitution ordered. Id. at 13 (Page ID #158). The United States opposed any offset to the restitution amounts, arguing that “[t]he burden is on the defendant to provide evidence that an offset is warranted and the defendant has not provided this Court with any evidence of what the insurance settlement covered, i.e., pain and suffering, medical expenses or some other loss.” R. 17 (Gov. Sent. Mem. at 6) (Page ID #180) (citing United States v. Sheinbaum, 136 F.3d 443, 449 (5th Cir. 1998)). The district court agreed with the government and ordered restitution in the total amount of $230,839.37. R. 35 (Order at 9) (Page ID #508). Sizemore’s request for credits for payments made by his insurance provider was denied. Id. at 11 (Page ID #510) (“the Court finds that the defendant is not entitled to an offset for any of the amounts of restitution.”).

At sentencing, Sizemore was found to have a total offense level of 19 and a criminal history category of I, with an advisory sentencing guideline range of 30-37 months of imprisonment. R. 40 (Sent. Hr’g Tr. at 33) (Page ID #579). The district court sentenced- Sizemore to 36 months of imprisonment followed by three years of supervised release. R. 36 (Judgment at 2-3) (Page ID #516-17). Sizemore filed a timely notice of appeal. R. 38 (Not. of Appeal) (Page ID #526).

II. ANALYSIS

A. Standard of Review

‘We review the propriety of a restitution order de novo.” United States v. Church, 731 F.3d 530, 535 (6th Cir. 2013). The specific amount of restitution awarded by the district court is reviewed for abuse of discretion. Id. (citing United States v. Elson, 577 F.3d 713, 733 (6th Cir. 2009)). See also United States v. Bearden, 274 F.3d 1031, 1040 (6th Cir. 2001) (“We review the propriety of ordering restitution de novo and the amount of restitution ordered for abuse of discretion.”).

B. The District Court Had Authority to Order Restitution

The first question raised on appeal is whether the district court misunderstood the extent of its discretion to determine the amount of loss subject to restitution under 18 U.S.C. §§ 3663 and 3664. Here the district court “finds that an order of restitution is appropriate pursuant to [18 U.S.C.] § 3663(a)(3).” R. 35 (Order at 8) (Page ID #507). Sizemore agrees with the district court that 18 U.S.C. § 3663 is the operative statute, but argues that the district court mistakenly concluded that it was required to order restitution. Appellant Br. at 15. The United States responds that “the totality of the record shows that the district court had correctly found that ‘restitution is ... discretionary.’ ” Appellee Br. at 11.

The parties agree with the district court’s conclusion that this case is governed by the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663. Appellant Br. at 15; Appellee Br. at 11; R. 35 (Order at 5) (Page ID #504). Pursuant to the VWPA, “[t]he court, when sentencing a defendant convicted of an offense under this title ... may order ... that the defendant make restitution to any victim of such offense....” 18 U.S.C § 3663(a)(1)(A). “[I]n determining whether to order restitution under this section” the court “shall consider ... the amount of the loss sustained by each victim as a result of the offense” along with “the. financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” 18 U.S.C. § 3663(a)(1)(B)®. The district court “may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3). The VWPA describes numerous types of restitution that may be ordered. See 18 U.S.C. § 3663(b). As relevant to this case, the court may order that a defendant “in the case of an offense resulting in bodily injury [that] also results in the death of a victim, pay an amount equal to the cost of necessary funeral and related services.” 18 U.S.C. § 3663(b)(3).

Once a district court has determined that restitution under the VWPA is appropriate, the “order of restitution made pursuant to [the VWPA] shall be issued and enforced in accordance with section 3664.” 18 U.S.C. § 3663(d). Pursuant to 18 U.S.C. § 3664(f)(1)(A), “[i]n each order of restitution, the court shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” District courts are “not required to make findings on the defendant’s financial conditions” when determining whether it is appropriate to order restitution. Sosebee, 419 F.3d at 460 (quoting United States v. Hall, 71 F.3d 569, 573-74 (6th Cir. 1995)).

Further, “[i]n no case shall the fact that a victim has received or is entitled to receive compensation with respect to a loss from insurance or any other source be considered in determining the amount of restitution.” 18 U.S.C.. § 3664(f)(1)(B). Once the district court has determined “the amount of restitution that is owed to each victim, the court shall ... specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid.” 18 U.S.C § 3664(f)(2). In setting the restitution payment schedule the district court must consider “the financial resources and other assets of the defendant^] ... projected earnings and other income of the defendant; and ... any financial obligations of the defendant.” Id. Section 3664 also addresses a scenario where, as here, a victim has received or may receive compensation from some source other than a defendant’s restitution payment:

(j)(l) If a victim has received compensation from insurance or any other source with respect to a loss, the court shall order that restitution be paid to the person who provided or is obligated to provide the compensation, but the restitution order shall provide that all restitution of victims required by the order be paid to the victims before any restitution is paid to such a provider of compensation.
(2) Any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in—
(A) any Federal civil proceeding; and
(B) any State civil proceeding, to the extent provided by the law of the State.

18 U.S.C. § 3664(j) (emphasis added).

In certain cases, an order of restitution may also be appropriate pursuant to the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. “The MVRA, passed as part of the Antiterrorism and Effective Death Penalty Act of 1996, amended the Victim Witness Protection Act, 18 U.S.C. § 3663(a)(1)(A) (‘VWPA”).” Elson, 577 F.3d at 721. District courts ordering restitution pursuant to the MVRA “shall order ... that the defendant make restitution to the victim of the offense....” 18 U.S.C. § 3663A(a)(l). The parties have not argued, and the district court did not conclude, that the MVRA dictates the result of this case. We therefore conduct our analysis pursuant to 18 U.S.C. §§ 3663 and 3664, but not 18 U.S.C. § 3663A.

The district court concluded that the total restitution sought in this case was $230,839.37. This amount “includes funeral expenses for Ms. Trent, Ms. Trent’s lost income payable to her minor child, and the medical expenses of Mr. Clapper and Ms. Mathes.” R. 35 (Order at 6) (Page ID #505). The district court correctly concluded that the VWPA permits restitution “to compensate a victim for medical expenses (§ 3663(b)(2)(A)), funeral expenses (§ 3663(b)(3)), and lost income (§ 3663(b)(2)(C)).” Id. The district court next noted that “the defendant has not objected to the types or amounts of restitution sought. These facts weigh in favor of an order of restitution.” Id. at 7 (Page ID #506) (footnote omitted). In considering whether to exercise its discretion and order restitution, the district court considered the defendant’s background, his high school and technical school diplomas, his consistent work history, and his profession as an automobile repairman and painter. Id. at 7 (Page ID #506). The district court acknowledged that “an order of restitution will undoubtedly put further strain on the defendant’s finances” but concluded that “the Court does not find that such a strain is so significant as to preclude an order of restitution.” Id. The district court ordered full restitution in the amount of $230,839.37. Id. at 13 (Page ID #512).

Sizemore disagrees with the district court’s restitution order for three reasons. First, Sizemore argues that the requirement pursuant to § 3664 that a district court shall order restitution to each victim in the full amount of each victim’s losses “seems to conflict with the discretionary nature [of] § 3663.” Appellant Br. at 17. Second, Sizemore argues that “[t]he district court erred by concluding that it was ‘required to order restitution in the full amounts as set forth above without consideration of the defendant’s economic circumstances.’ ” Id. at 21. Third, Sizemore suggests that the district court committed error “by failing to take into consideration Mr. Sizemore’s own medical expenses, his ability to pay, and the respective level of injury of Ms. Trent, Ms. Mathes, and Mr. Clapper when determining which expenses should be counted as losses subjected to restitution.” Id. at 22.

The United States responds that, “consistent with 18 U.S.C. § 3664(f)(2), the district court properly considered Defendant’s financial resources when determining whether to order restitution in the first instance, and when setting the payment schedule.” Appellee Br. at 11. The government also contends that “Defendant has not cited any legal authority for the proposition that the court was required to consider his financial situation in determining which losses should be counted for restitution purposes, especially where Defendant did not dispute the losses set forth in the presentence report.” Id. at 12.

We disagree with Sizemore that there exists a conflict between § 3663 and § 3664. Sizemore believes that there is a conflict between 18 U.S.C. § 3663(a)(l)(B)(i), which requires that a court consider a defendant’s financial circumstances in deciding whether to order restitution, and 18 U.S.C. § 3664(f)(1)(A), which forbids a court from considering a defendant’s economic circumstances when setting the amount of restitution. Section 3663 sets forth the factors that a district court shall consider when determining whether to exercise its discretion and award restitution under the VWPA. Factors that a district court shall consider when determining whether to award restitution in the first instance include the losses sustained by a defendant’s victims and the defendant’s financial circumstances. It is certainly reasonable to require district courts to analyze both the losses of a defendant’s victims and the defendant’s ability to make restitution payments before ordering restitution in the first instance— ordering a defendant with zero earning potential or financial resources to make restitution payments would be a futile exercise. Only after a district court decides to exercise discretion and order restitution under § 3663 does § 3664 become operative. Section 3663(d) explicitly directs the district court to “issue[ ] and enforce[ ] [its order of restitution] in accordance with section 3664.” Section 3664 sets forth the procedures for setting the amount of restitution and the restitution payment schedule. This scheme is sensible: Courts consider the financial circumstances of the defendant in deciding whether to order restitution and in setting the defendant’s payment schedule, but not in setting the total amount of restitution due to the victims.

We find no error in the district court’s decisions both to order restitution and to do so at the full amount as calculated by the probation office. The district court followed precisely the rigid contours of § 3663 in deciding to exercise its discretion to award restitution in the first instance, and it did not abuse its discretion when setting the restitution amounts pursuant to § 3664. While- the restitution order will likely cause Sizemore a financial strain, the district court was within its discretion in concluding that Sizemore’s education, training, and skillset will permit him to secure gainful employment and make restitution payments as required. The district court’s decision to order restitution in this case was therefore within its discretion under § 3663(a)(1)(A).

It is clear on the record before us that Sizemore owes restitution in the amount of $173,451.43 to Ashley Trent’s minor child, A.H. The parties entered into a plea agreement addendum regarding the restitution to A.H., and Sizemore never contested A.H.’s restitution amount at sentencing. A restitution order made pursuant to a provision in a plea agreement is expressly permitted by § 3663(a)(3). We therefore agree with the district court that “the defendant has agreed to restitution in the amount of $173,451.43 payable to A.H., minor child of Ashley Trent.” R. 35 (Order) (Page ID #502).

We also conclude that the district court correctly determined that, once it decided to award restitution, it was required to order restitution to each victim in the full amount of the victim’s losses. After determining that restitution is appropriate pursuant' to § 3663(a)(1)(A), a district court “shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A). We disagree with Size-more that the district court committed reversible error. First, while the district court did not consider Sizemore’s individual circumstances and ability to pay restitution when determining the amount of restitution, those factors were considered by the court in deciding whether restitution was appropriate, and in setting the payment schedule. Second, Sizemore has not argued that any of the amounts calculated by the probation office and accepted by the district court were calculated incorrectly. We find no evidence in the record that suggests Sizemore objected to the specific final dollar amounts that were accepted by the district court. Additionally, neither party has cited, and we have not found, any ease binding on this court that suggests we must read § 3664(f)(1)(A) as doing anything other than what it says— requiring a restitution order to state “the full amount of each victim’s losses ... without consideration of the economic circumstances of the defendant.” We therefore conclude that the district court did not commit reversible error in ordering restitution or in relying on the restitution amounts calculated by the probation office and reported in the PSR. The district court’s decision to order restitution was appropriate, and it did not abuse its discretion in setting the amount of restitution.

C. The District Court Did Not Abuse its Discretion in Refusing to Grant Sizemore Credit For Amounts Paid to Victims by His Auto Insurance Company

Sizemore next argues that the district court abused its discretion when it declined to reduce his total restitution by the amounts that his automobile insurance company paid to his victims. Although Sizemore notes that “[i]n no case shall the fact that a victim has received or is entitled to receive compensation with respect to a loss from insurance or any other source be considered in determining the amount of restitution,” he argues that under § 3664(j)(2) “[a]ny amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in ... any State civil proceeding....” Appellant Br. at 22 (citing 18 U.S.C. § 3664(f)(1)(B) and § 3664(j)(2)(B)). The United States responds that “Defendant has not established that he satisfied [18 U.S.C. § 3664(j)(2)(B) ], much less that the district court abused its discretion by declining to grant an offset.” Appellee Br. at 12.

“[T]he burden of proving an offset should lie with the defendant.” Elson, 577 F.3d at 734 (quoting Sheinbaum, 136 F.3d at 449). We have previously held that a defendant is in the best position to demonstrate that he has already compensated a victim for a specific loss in a civil proceeding, and accordingly “the burden should fall on him to argue for a reduction in his restitution order.” Id. (internal quotation marks omitted). Where a defendant meets that burden, the district court “ ‘must reduce restitution by any amount the victim received as part of a civil settlement’ to avoid[ ] the undesirable result of restitution effectuating a double recovery.” Id. (quoting United States v. Gallant, 537 F.3d 1202, 1250 (10th Cir. 2008)).

Farm Bureau Insurance issued settlement payments to Ms. Trent ($25,000), Mr. Clapper ($12,500), and Ms. Mathes ($12,-500). R. 16-4 (Settlement Letter) (Page ID #173). The district court concluded that the Farm Bureau Insurance payments to Clapper and Mathes were issued before the entry of a restitution order, and “thus, they cannot be amounts ‘later recovered’ ” within the meaning of 18 U.S.C. § 3664(j)(2). R. 35 (Order at 11) (Page ID #510). The court further concluded that “amounts paid to medical providers on behalf of the victims are not eligible to be offset against the total amount of restitution.” Id. (citing United States v. Bright, 353 F.3d 1114, 1123 (9th Cir. 2004) (“funds the victims have not received cannot reduce or offset the amount of losses the defendant is required to repay.”)).

In considering the entire record and the district court’s order, we conclude that the district court did not abuse its discretion when it declined to offset its restitution order by the amounts of Size-more’s insurance company’s payments to the victims. The payments made by Farm Bureau Insurance to Trent, Mathes, and Clapper were general settlements that were never specifically designated to a particular category of loss. R. 17-3 (Email with Farm Bureau) (Page ID #214). By contrast, the district court identified the losses that were covered by its restitution order as follows: Ashley Trent’s funeral expenses; Ashley Trent’s lost wages; Mr. Clapper’s medical expenses; and Ms. Mathes’s medical expenses. Because we are unable to determine from the record before us whether the Farm Bureau Insurance payments were intended to cover the same losses that the restitution order covers, we cannot conclude that the restitution order has “the undesirable result of effectuating double a recovery.” Elson, 577 F.3d at 734 (quoting Gallant, 537 F.3d at 1250). While Sizemore’s insurance company did settle with his victims, “a private settlement between a criminal wrongdoer and his victim releasing the wrongdoer from further liability does not preclude a district court from imposing a restitution order for the same underlying wrong.” United States v. May, 500 Fed.Appx. 458, 462 (6th Cir. 2012) (quoting Bearden, 274 F.3d at 1041). We therefore conclude that the district court did not abuse its discretion in declining to offset Sizemore’s restitution by the amounts his insurance company paid to his victims.

III. CONCLUSION

Joshua Sizemore will likely make restitution payments for the rest of his life. Though we understand this will pose a financial hardship, “[restitution ordered as part of a criminal sentence is punitive.” May, 500 Fed.Appx. at 463 (citing Kelly v. Robinson, 479 U.S. 36, 52, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986)). Because the district court had the statutory authority to order restitution, because it did not abuse its discretion in ordering restitution, and because it complied with the statutory provisions, we AFFIRM the district court’s restitution order.

      . Our cases routinely refer to 18 U.S.C. § 3663 as the Victim and Witness Protection Act (referring to the Victim and Witness Protection Act of 1982). See United States v. Sawyer, 825 F.3d 287, 292 (6th Cir. 2016); Elson, 577 F.3d at 721. We have also referred to 18 U.S.C. § 3664 as a component of the VWPA. United States v. Sosebee, 419 F.3d 451, 457 (6th Cir. 2005) ("The district court ordered restitution pursuant to the Victim and Witness Protection Act, 18 U.S.C. §§ 3663-3664.").

      . While Sizemore did object to having to pay funeral expenses for Trent and insurance reimbursements to Blue Cross. Insurance and Farm Bureau Insurance, the record does not reflect that he specifically objected to the amounts calculated by the probation office and ultimately accepted by the district court. As it appears to us, Sizemore disputed that he was required to pay for Trent’s funeral expenses and for the insurance payments, but conceded that if he was required to pay, the amounts calculated by the probation office and accepted by the district court were accurate. See R. 40 (Sent. Hr'g Tr. at 7-11) (Page ID #553-557).


author: BERNICE BOUIE DONALD, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kathryn Sue SIMMERMAN, Defendant-Appellant.
    No. 16-1019
    United States Court of Appeals, Sixth Circuit.
    Argued: January 24, 2017
    Decided and Filed: March 9, 2017

      ARGUED: Donald A. Davis, SPRING-STEAD BARTISH & BORGULA LAW, PLLC, Grand Rapids, Michigan, for Appellant. Clay Stiffler, UNITED STATES ATTORNEYS OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Gary K. Springstead, SPRINGSTEAD BART-ISH & BORGULA LAW, PLLC, Fremont, Michigan, for.Appellant. Clay Stif-fler, UNITED STATES ATTORNEYS OFFICE, Grand Rapids, Michigan, for Ap-pellee.
    Before: MERRITT, CLAY, and DONALD, Circuit Judges.
   OPINION

BERNICE BOUIE DONALD, Circuit Judge.

The appellant, Kathryn Simmerman, pled guilty, pursuant to a plea agreement, to one count of embezzling $1,528,000 from Shoreline Federal Credit Union (Shoreline), in violation of 18 U.S.C. § 657 (Count 1), and one count of structuring the deposits of the money she stole to evade the reporting requirements of 31 U.S.C. § 5313(a), in violation of 31 U.S.C. § 5324(a)(3) and (d)(1) (Count 2). The district court assessed Simmerman’s total offense level to be 28, based on a base offense level of seven, a sixteen-level increase for a loss amount between $1 million and $2.5 million, a two-level increase for sophisticated means, four-level increase for jeopardizing the soundness of a financial institution, a two-level increase, for abuse of a position of trust, and a three-level reduction for acceptance of responsibility and a timely plea. With a criminal history category of I, Simmerman’s guideline range was 78-97, months and she was sentenced to 78 months on Count 1 and 60 months on Count 2, to be served concurrently. Simmerman raised the following issues on appeal: whether the district court’s sentence was in error because it assessed enhancements for (1) sophisticated means (U.S.S.G. § 2B1.1(10)(C)); (2) jeopardizing the soundness of a financial institution (U.S.S.G. § 2B1.1(b)(16)(B)(i)); and (3) abuse of a position of trust (U.S.S.G. § 3B1.3). Because the district court was not clearly erroneous when it assessed the sentencing enhancements, we AFFIRM the district court’s decision.

I.

In 1987, at the age of twenty-six, Sim-merman began working at Shoreline. In 2000 she became assistant manager, and in 2006 she became Shoreline’s manager. Simmerman was responsible for making investments and preparing Shoreline’s financial statements, which she presented to Shoreline’s part-time board, the National Credit Union Administration (NCUA), and Shoreline’s auditors, Financial Standards Group. Simmerman was also responsible for taking cash from the vault each day and giving it to the credit union tellers so they could service customers. Simmerman admitted that she first began stealing money from Shoreline in 1998. Simmer-man’s acts were discovered during a routine annual audit in 2014.

Simmerman effected her scheme using the following method: Simmerman would remove cash from the “vault,” a filing cabinet located within the credit union. She would use the “teller module,” a computer program used by all employees' to track monies within the credit union, to make an entry showing the amount of cash she had removed from the vault had been deposited into another teller’s drawer. However, the drawer she deposited the stolen funds was a virtual, fictitious drawer denoted by a code not recognized by the system and which did not correspond to an actual teller drawer. Thus, the vault amount was accurately reflected as having been reduced, but because the teller module did not recognize the fictitious drawer designation, the deposit into the fictitious drawer was recorded by default into a “general ledger suspense account.” At the end of the day wherein she made one of these transfers, she made a manual entry suggesting that a transfer from the general ledger suspense account back to the vault had occurred in order to prevent the general ledger suspense account from growing noticeably. This ensured that the amount of cash the teller module believed to be in the vault was actually correct, but meant that the general ledger balance would be overstated by the amount of cash she had taken.

To conceal the general ledger balance during audits, Simmerman prepared fictitious general ledger entries prior to the audits and decreased the amount reflected in the vault general ledger balance to match the amount of cash actually in the vault. To balance the ledger, she made a corresponding increase in the general ledger entry reporting the amount of cash Shoreline had on deposit with its correspondent credit union, Alloya. The auditors always performed a physical count of the amount of cash in the vault and compared it to the ledger balance. Once the auditors had completed their physical count and compared the total to the general ledger balance, Simmerman would reverse the original journal entry and return the vault balance to-the overstated amount.

Simmerman also directed Shoreline tellers to deposit some of the embezzled cash into Shoreline accounts belonging to herself, her husband, and her adult children (showing $116,592 in cash deposits into her husband’s account, $475,975 into one adult son’s account, and $39,000 into her other sons’ account). These deposits were in increments of less than $10,000 to avoid triggering currency transaction reports. For example, on October 2, 2014, and October 7, 2014, Simmerman took $22,000 from Shoreline’s vault, but spread out the deposits of that cash in thirteen separate transactions between October 2, 2014, and October 20, 2014, in amounts ranging from $100 to $7,000. She also sometimes simply took money from the vault and put it in her purse. At the time of her arrest, the general ledger balance was overstated by $1,945 million.

On July 29, 2015, Simmerman was charged with one count of embezzling $1,528,000 from Shoreline and one count of structuring deposits of the money she stole to evade reporting requirements. On August 17, 2015, Simmerman pled guilty to both counts, pursuant to a plea agreement in which the government agreed to forbear from bringing charges against Simmer-man’s family related to their spending of the proceeds of the embezzlement.

II.

In reviewing a district court’s application of the Sentencing Guidelines, this court must “accept the findings of fact of the district court unless they are clearly erroneous and ... give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e). In light of Buford v. United States, 532 U.S. 59, 63-66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001), this court has held that our standard of review of a district court’s application of provisions of the Sentencing Guidelines to the facts should be treated deferentially and should not be disturbed unless clearly erroneous. See United States v. Jackson-Randolph, 282 F.3d 369, 389-90 (6th Cir. 2002) (holding that the Supreme Court’s reasoning in Buford leads to the use of a deferential standard of review in the application of the Sentencing Guidelines under, circumstances involving fact-bound determinations).

III.

i. Sophisticated means

Section 2Bl.l(b)(10)(C) of the guidelines calls for a two-point enhancement for use of sophisticated means. According to the Application Note, “sophisticated means” is defined as “especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.” U.S.S.G. § 2B1.1 cmt. n.9. It further notes that, “[c]onduet such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts also ordinarily indicates sophisticated means.” Id. Further, this court has held that the “funneling of transactions through relatives in order to disguise the origin of funds is sufficient to support an enhancement for sophisticated means.” United States v. Erwin, 426 Fed.Appx. 425, 437 (6th Cir. 2011) citing United States v. May, 568 F.3d 597, 607 (6th Cir. 2009).

The district court found that Sim-merman used sophisticated means to conceal her crime. Although the government and Simmerman argued before the district court that Simmerman’s embezzlement was not sophisticated because she simply took money out- of the credit union vault, the district court found that Simmerman’s concealment.of her offense from auditors via the extensive manipulation of Shoreline’s computer systems and financial records amounted to the use of sophisticated means. Transcript of Sentencing at 375-77, United States v. Kathryn Sue Simmerman, No. 15-CR-127 (W.D. Mich. March 10, 2016), ECF No. 30.

The district court was not clearly erroneous. The district court cited Simmer-man’s use of fictitious identification numbers and a dormant account ledger to avoid detection. Id. at 376. Simmerman also structured deposits of her embezzled cash and used family member’s credit union accounts to hide her activity. Further, the presentence report contains more than three pages of dense, technical recitations of the complicated accounting machinations used by Simmerman to conceal her crime. This included the daily manipulation of Shoreline’s computerized accounting system to balance the missing cash, the use of a dormant account to hide the money, the manipulation of the balance of the suspense account, and the movement of general ledger balances to and from the vault ledger before and after the accountants conducted their on-site visits.

Although Simmerman argues that the embezzlement was not sophisticated because she essentially took money and put it in her purse, the district court explicitly rejected that argument, finding that the concealment of the money was sophisticated and warranted the sentencing increase. This was not clearly erroneous. Simmer-man’s system of manipulating the computer system and creating a dormant account to hide the stolen money, and the various other methods she employed to evade detection, were sophisticated. Thus, the district court was not clearly erroneous when it assessed a sentencing enhancement for sophisticated means.

ii. Safety and soundness of a financial institution

The Sentencing Guidelines provide that a defendant’s offense level shall be increased by four levels if the offense “substantially jeopardized the safety and soundness of a financial institution.” U.S.S.G. § 2B1.1(b)(16)(B)(i). The commentary contains the following non-exhaustive list of factors for courts to consider when determining whether the enhancement applies: (1) “[t]he financial institution became insolvent”; (2) “[t]he financial institution substantially reduced benefits to pensioners or insureds”; (3) “[t]he financial institution was unable on demand to refund fully any deposit, payment, or investment”; (4) “[t]he financial institution was so depleted of its assets as to be forced' to merge with another institution in order to continue active operations”; or (5) “[o]ne or more of the [foregoing] criteria ... was likely to result from the offense but did not result from the offense because of federal government intervention, such as a ‘bailout.’ ” U.S.S.G. § 2B1.1 cmt. n.13.

The district court found that there was a period where “the solvency of [Shoreline] was really in jeopardy” with a “net worth ratio [of] less than two percent.” Transcript of Sentencing at 410. The district court further found that Simmer-man’s $1,945 million embezzlement represented a “substantial percentage of the entire asset[s]” of Shoreline and, thus, it was “substantially endangered” and “clearly in difficult straits from an asset liability standpoint.” Id.

The district court finding was not clearly erroneous. Although Shoreline did' not become financially insolvent, that is only one of the factors that the district court was guided to consider. However, even if it was a critical factor, other circuits have found that substantial jeopardy enhancements are appropriate even though a financial institution did not actually become insolvent. See e.g. United States v. Zech, 553 F.3d 663, 666-67 (8th Cir. 2009) (holding that a substantial jeopardy enhancement is appropriate even though the financial institution did not actually become insolvent); United States v. Young, 413 F.3d 727, 733 (8th Cir. 2005) (affirming application of the substantial-jeopardy enhancement when defendant’s fraud caused a bank to become “critically undercapitalized” with a capital ratio of less than 2%). After discovering the embezzlement and accounting for the $1,945 million loss, Shoreline’s net worth ratio fell to 1.8%. It was critically underca-pitalized, and thus it was not clearly erroneous for the district court to apply a substantial jeopardy enhancement. Transcript of Sentencing at 383 (because Shoreline’s net worth was less than 2%, the Federal Credit Union Act classified it as critically undercapitalized, the lowest level of capital adequacy short of insolvency); see also Young, 413 F.3d at 733.

Furthermore, Shoreline was a small credit union and the amount of money Simmerman embezzled represented 86% of the earnings that Shoreline had accumulated over its entire sixty-two year history. Transcript of Sentencing at 386. The district court noted that Shoreline was lucky that there were not any large demands on Shoreline before it recovered on its fidelity bond, since Shoreline likely would not be able to meet the demand given Simmer-man’s embezzlement. This was not a clearly erroneous conclusion given the amount of money that Simmerman embezzled compared to the size of the credit union. Id. at 410.

Additionally, although 'there was not an actual government “bailout” of Shoreline, it does not negate the fact that Shoreline was able to avoid some of the substantial jeopardy factors because of actions by the NCUA Board. Although Simmerman argues that the NCUA Board did not really take any action and that it just “let the credit union continue to operate,” the NCUA Board’s decision to allow Shoreline to operate was in fact a government action. Section 1790d(i)(l) of Title 12 required the NCUA Board to act within ninety days since Shoreline was critically undercapital-ized. The NCUA Board was required to either “(A) appoint a conservator or liquidating agent for the credit union; or (B) take such other action as the Board determines would better achieve the purpose of this section, after documenting why the action would better achieve that purpose.” Id. The NCUA Board decided to give Shoreline six months to continue operating to allow Shoreline time to recover on its insurance bond. Alternately, Shoreline could have been shut down within ninety days.

By the commentary’s own terms, the list of factors it contains is “non-exhaustive” and establishes only the requirement that the district court “shall consider” the factors listed in the Application Note in determining whether conduct arises to the level of substantially jeopardizing the safety and soundness of a financial institution. See § 2B1.1 cmt. n.13. The district court did just that. The district court considered several factors and found that, because of Simmerman’s embezzlement, -5 small credit union became critically undercapitalized and it was in serious jeopardy of insolvency, absent recovery on its insurance bond. Therefore, the district court was not clearly erroneous when it assessed a sentencing enhancement for jeopardizing the soundness of a financial institution.

iii. Abuse of a position of trust

Under U.S.S.G. § 3B1.3, a defendant’s offense level should be increased by two levels if she “abused a position of public or private trust.” Per Application Note 1, a “position of public or private trust [is] characterized by professional or managerial discretion.” U.S.S.G. § 3B1.3 cmt. n.l. Persons holding such positions “are subject to significantly less supervision than employees whose responsibilities are primarily nondiscretionary in nature.” Id. • For the enhancement to apply, “the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the' offense (e.g., by making the detection of the offense or the defendant’s responsibility for the offense more difficult).” Id. The application note specifies that the adjustment would apply to “a bank executive’s fraudulent loan scheme” but not “embezzlement or theft by an ordinary bank teller.” Id.

The district court found that Simmer-man, as a manager of Shoreline, was given a certain level of trust that she clearly violated. In ruling that she abused a position of trust, the district court held that “[a] manager of a credit union is given certain discretion,” and “certain requirements,” including “honestly and completely directing] the people under them and directing] where the monies are to be taken from and where they are to be put to.” Transcript of Sentencing at 417. The district court went on to find that “her actions and the trust that was given to her as the manager of this credit union by the Board was clearly violated.” Id.

This finding was not clearly erroneous. Simmerman, as the manager of Shoreline, was given a level of managerial discretion and was rarely supervised. In fact, Sim-merman was subject to no day-to-day supervision and the only oversight was provided'by a group of part-time, volunteer Board and Supervisory Committee members who met at most once a month to discuss Shoreline’s financial position. Id. at 381-82. Other than that, Simmerman was the sole person overseeing Shoreline’s day-to-day activities. Further, her duties included accessing the cash vault by herself; the preparation of financial reports to the Board, the auditors, and the NCUA; and decisions about what investments to make. Id. at 382-83, 390-91.

There is also no question that Simmer-man’s position of trust significantly contributed to “the commission or concealment of the offense.” U.S.S.G. § 3B1.3, cmt. n.1. As the NCUA investigator testified at sentencing, Simmerman’s position enabled her “to access the cash and change the financial records of the credit union to reflect that the cash was still there when in fact it wasn’t because she didn’t have any day-to-day supervision.” Transcript of Sentencing at 383. Simmerman hid her crime from auditors by preparing fictitious general ledger entries prior to the audits and decreasing the amount reflected in the vault general ledger balance to match the amount of cash actually in the vault. Again, there was no day-to-day oversight and what little oversight that there was, by nature of the part-time volunteer Board and the quarterly audits, relied on the fabricated reports that Simmerman provided. Simmerman was a trusted manager who abused her position of trust to conceal her criminal actions. Thus, the district court was not clearly erroneous when it assessed a sentencing enhancement for abuse of a position of trust.

CONCLUSION

The district court was not clearly erroneous when it assessed sentencing enhancements on Simmerman for (1) sophisticated means (U.S.S.G. § 2B1.1(10)(C)); (2) jeopardizing the soundness of a financial institution (U.S.S.G. § 2B1.1(b)(16)(B)(i)); and (3) abuse of a position of trust (U.S.S.G. § 3B1.3). Because the district court did not clearly err when it assessed the sentencing enhancements, we AFFIRM the district court’s decision.


author: SILER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jamar Alonzo QUARLES, Defendant-Appellant.
    No. 16-1690
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: March 10, 2017

      ON BRIEF: Paul L. Nelson, Jasna To-sic, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. Sean M. Lewis, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Ap-pellee.
    Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
   OPINION

SILER, Circuit Judge.

Defendant Jamar Quarles appeals his sentence, including the district court’s determination that Michigan’s crime of third-degree home invasion is equivalent to generic burglary, thus constituting a predicate offense under the Armed Career Criminal Act (“ACCA”). Specifically, he argues that the Michigan statute: (1) includes locations that are broader than generic burglary and (2) does not properly have an intent-upon-entry element that is required under • generic burglary. If Quarles succeeds on his challenge, he also challenges a three-point increase in criminal history. We affirm the district court’s determination that Michigan’s crime of third-degree home invasion is categorically equivalent to generic burglary.

FACTUAL AND PROCEDURAL BACKGROUND

Quarles was charged in a single-count indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He pleaded guilty to that charge without a plea agreement. At his original sentencing, the district court held that Quarles’s conviction for third-degree home invasion was a violent felony under the residual clause of the ACCA. The district court expressly declined to rule whether that offense qualified as generic burglary. Finding this as Quarles’s third-predicate offense under the ACCA, the district court sentenced him to 204 months’ incarceration. On appeal, this court vacated the sentence in light of Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and remanded the case for resentencing. On remand, the district court considered whether Michigan’s crime of third-degree home invasion constituted a “violfent felony.” Finding that it was the “functional equivalent of generic burglary,” the district court resentenced Quarles to 204 months’ incarceration.

DISCUSSION

I. Quarles’s Johnson Claim

a. Standard of Review

We review de novo whether a prior conviction qualifies as a “violent felony” under the ACCA. United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014).

b. Categorical Approach

When determining whether a particular crime qualifies as a violent felony, we start with the “categorical approach.” Id. We look “to the fact of conviction and the statutory definition of the prior offense.” Id. We then “compare the elements of the crime of conviction with the elements of the ‘generic’ version of the listed offense — ie., the offense as commonly understood.” Mathis v. United States, — U.S. - , 136 S.Ct. 2243, 2247, 195 L.Ed.2d 604 (2016). The prior conviction qualifies as an ACCA predicate offense only if its “elements are the same as, or narrower than, those of the generic offense.” Id.

In this case, we must compare Michigan’s third-degree home invasion statute with the elements of generic burglary. Michigan Compiled Laws § 750.110a(4) provides:

(4) A person is guilty of home invasion in the third degree if the person does either of the following:
(a) Breaks and enters a dwelling with intent to commit a misdemeanor in the dwelling, enters a dwelling without permission with intent to commit a misdemeanor in the dwelling, or breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor.
(b) Breaks and enters a dwelling or enters a dwelling without permission and, at any time while the person is entering, present in, or exiting the dwelling, violates any of the following ordered to protect a named person or persons:
(i) A probation term or condition.
(ii) A parole term or condition.
(iii) A personal protection order term or condition.
(iv) A bond or bail condition or any condition of pretrial release.

The generic definition of burglary, as defined by the Supreme Court, is “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Comparing these two definitions, Quarles argues that the Michigan statute is overbroad in two respects. First, he argues that the term “dwelling,” as defined in the statute, encompasses more than the “building or other structure[s]” found in Taylor. Second, Quarles argues that the Michigan statute does not require intent to commit a crime upon entry, thus making it overbroad. We will address each of these arguments separately.

The Government argues that this court has already decided the issue. See United States v. Gibbs, 626 F.3d 344, 353 (6th Cir. 2010); see also United States v. Horton, 163 Fed.Appx. 378, 381-82 (6th Cir. 2006) (finding that subsection (4)(a) of the third-degree home invasion statute is categorically the equivalent of burglary of a dwelling). In Gibbs, this court held that “a conviction for second-degree home invasion under Michigan law is the equivalent of the enumerated offense of burglary of a dwelling and therefore constitutes a ‘crime of violence.’ ” Id. at 353 (citations omitted). While second-degree home invasion and third-degree home invasion are indistinguishable for ACCA purposes, Gibbs was decided prior to Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Just to ensure that Descamps did not upset the holdings in Gibbs and Horton, we will engage in a full de novo review.

i. Dwelling

Michigan Compiled Laws § 750.110a(l)(a) defines a dwelling as “a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant' structure attached to that structure or shelter.” Quarles argues that the term “shelter” could include places such as a “tree ... a vehicle, boat, outcropping of rock, cave, bus stop, or a suspended tarp” that “are not buildings or structures.” This argument fails.

The Supreme Court has explained that “to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). In order to succeed, the defendant must show “a realistic probability, not a theoretical possibility, that the State would apply-its statute to conduct that falls outside the generic definition of a crime.” Id. In this case, Quarles offers only hypothetical arguments.

The main reason that Quarles can point only to liypothetical arguments rather than concrete examples is because the plain language of Michigan’s third-degree home invasion statute is narrow. The American Heritage Dictionary defines ■ shelter as “something, especially a structure, that provides cover or protection, as from the weather.” While this definition does provide room for broad application, the Michigan statute limits shelter to only those that are “used permanently or temporarily as a place of abode.” Mich. Comp. Laws § 750.110a(l)(a). The American Heritage Dictionary defines abode as “a dwelling place; a home.” With this limitation, it would be a stretch, rather than a realistic probability, that a tree, vehicle, boat, outcropping of rock, cave, bus stop, or suspended tarp would be considered a “home.” Furthermore, the claim that the Michigan legislature intended to encompass a broad range of places is undercut by the fact that when the legislature intended to include those places, they were expressly incorporated. For -example, Michigan Compiled Laws § 750.110(1) states:

A person who breaks and enters, with intent to commit a felony or a larceny therein, a tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat, ship, shipping container, or railroad car is guilty of a felony punishable by imprisonment for not more than 10 years.

See, e.g., United States v. Ritchey, 840 F.3d 310, 318 (6th Cir. 2016) (finding Mich. Comp. Laws § 750.110 broader than generic burglary).

Therefore, we hold this statute’s use of the term “dwelling” does not encompass more areas than “building or structures” found in Taylor.

ii. Intent-At-Entry

An alternative way of committing third-degree home invasion is to break and enter a dwelling and, at any time while entering, present in, or exiting the dwelling, commit a misdemeanor. See Mich. Comp. Laws § 750.110a(4)(a). Quarles argues that this alternative “does not qualify as generic burglary” because it “does not necessarily have an intent-at-entry element.”

The question of whether generic burglary requires intent at entry has resulted in a circuit split focusing on Taylor’s “remaining in” language. Compare United States v. Bonilla, 687 F.3d 188, 193-94 (4th Cir. 2012) (finding that Taylor does not require that intent exist at entry), with United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008) (finding a statute “is not a generic burglary under the Taylor definition because it does not contain an element of intent to commit a [crime] at the moment of entry”). Essentially, the circuit split hinges on whether the “remaining in” language allows for the development of intent at any point or whether the intent must exist at entry.

We have already ruled on the issue. See United States v. Priddy, 808 F.3d 676, 685 (6th Cir. 2015). In Priddy, we determined whether a variant of the Tennessee burglary statute, Section 39-14-402(a)(3), qualified as an ACCA predicate offense. Id. Finding that it qualified under Taylor, we held that it was “a ‘remaining-in’ variant of generic burglary because someone who enters a building or structure and, while inside, commits or attempts to commit a felony will necessarily have remained inside the building or structure to do so.” Id.

Accordingly, generic burglary, as defined in Taylor, does not require intent at entry; rather the intent can be developed while “remaining in.” See Taylor, 495 U.S. at 598, 110 S.Ct. 2143 (defining generic burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime”) (emphasis added).

AFFIRMED.

      . We do not address Quarles’s arguments as they relate to the modified-categorical approach or his three-point increase in criminal history.

      . Quarles conceded, in the district court, that the term structure "arguably has the same meaning as the term ‘structure’ in the generic burglary definition.” Therefore, his argument focuses on the term "shelter.”

      . In his Rule 28(j) letter, Quarles argues that Ritchey compels us to rule in his favor. However, Ritchey is distinguishable because the statute at issue explicitly lists places outside of buildings or structures.


author: POSNER, Circuit Judge.

text:
    CAFFERTY, CLOBES, MERIWETHER & SPRENGEL, LLP, on behalf of itself and all others similarly situated, Plaintiff-Appellant, v. XO COMMUNICATIONS SERVICES, LLC, Defendant-Appellee.
    No. 16-3472
    United States Court of Appeals, Seventh Circuit.
    Argued February 7, 2017
    Decided March 8, 2017

      Katrina Carroll, Esq., Attorney, Kyle Alan Shamberg, Attorney, Lite DePalma Greenberg, LLC, Chicago, IL, for Plaintiff-Appellant.
    Andrew M. Spangler, Jr., Attorney, William S. Porterfield, Attorney, Barack, Fer-razzano, Kirschbaum & Nagelberg LLP, Chicago, IL, JC Miller, Attorney, XO Communications Services LLC, Herndon, VA, for Defendant-Appellee.
    Before BAUER, POSNER, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

The plaintiff, a law firm, seeks both individual and class relief against XO Communications, a large provider of telecommunications services to business customers, such as the plaintiff, and wholesalers. The plaintiffs contract with XO provided that the contract would be automatically renewed at the end of the customer’s, current service term “for a similar term and at the same rates” set forth in the contract. A customer who didn’t want to renew was required to so notify XO at least 30 days prior to the expiration date in the contract; if it failed to do so, the contract would renew automatically. The contract also provided that XO would notify the customer of the automatic-renewal feature of the contract (which it did from time to time), thus reminding the customer that if it decided not to renew the contract it would have to so notify XO at least 30 days before expiration: The contract further stated that if the customer terihinated the contract after the deadline it would have to pay XO a termination fee based on the revenue that XO would have received from the customer over the remaining months of the contract had it not been terminated prematurely and thus in violation of the contract. XO’s monthly invoices contain a prominent reminder of the automatic-renewal feature of the contract.

The plaintiffs contract with XO had an initial term of three years and renewed automatically (that is, upon the end of the contract term, the plaintiff not having terminated) three times. But shortly after the third renewal began the plaintiff reneged because it was moving to a different location, one not serviced by XO. By thus violating the contract the plaintiff owed XO a termination fee.

All this is straightforward, leaving one to wonder how it could give rise to this lawsuit, let alone to this appeal, which complains only about the district judge’s denial of leave to the plaintiff to file a third amended complaint, a ruling to which the plaintiff takes violent exception. The multiple complaints in this case alleged breach of contract, violation of Illinois consumer protection statutes, unjust enrichment, and unconscionability, among other things. But the plaintiff has no case, as all its claims pivot on its contention that XO’s monthly reminders of the automatic-renewal feature of the contract should have included, but didn’t, the date of the automatic renewal, or that XO should have otherwise notified the plaintiff of the renewal date before the contract renewed. But as the automatic renewal comes at the end of the customer’s term of service, it is child’s play for the customer to keep track of the deadline (30 days before the end of the term) for declining — without any penalty— to renew the contract. Remember too that the customer receives a monthly reminder that the contract will renew if the customer doesn’t terminate it in compliance with its terms — terms that include the deadline that the plaintiff missed.

Its complaint about having to pay a termination fee for violating the contract falls with its challenge to XO’s not advising it of the date of the contract’s automatic renewal. Because the plaintiff, having failed to keep track of the renewal date, terminated the contract after the contract had been renewed, thereby violating the terms of the contract, it was required to pay the termination fee of some $9,000 (it’s paid some, but not all of it), based as we said on the loss to XO of the revenues that the contract would have generated for it had the plaintiff not violated the contract. The contract had been renewed, and thus was in force, because the plaintiff, apparently losing track .of its terms, had failed to terminate it before the renewal took effect.

The plaintiffs argument comes down to a baseless assertion that the renewal clause in the contract “assigned responsibility to XO to track customers’ renewal dates and to give them fair warning that the window of opportunity to avoid renewal of their Agreements was closing.” No, the renewal clause doesn’t say that and doesn’t have to, since every customer is informed that the contract automatically renews at the end of the customer’s term of service unless that renewal is cancelled by the customer at least 30 days before the end of the term. The plaintiffs other statutory and common-law claims, all based on its having to pay a termination fee for failing to cancel the contract before the deadline, fail for the same reason.

It’s not as if the plaintiff were some hapless consumer bamboozled by a huge company. According to the plaintiffs website (www.caffertyclobes.com/home, visited March 3, 2017), “Cafferty Clobes Meri-wether & Sprengel LLP, which has offices in Chicago, Philadelphia, and Ann Arbor, combines the diverse talents of attorneys with a wide range of litigation experience. Since its founding in 1992, the firm has focused on representing plaintiffs, such as investors, employees, consumers and companies, in complex civil litigation throughout the country. The firm and its attorneys have helped recover billions of dollars for the benefit of represented plaintiffs and classes, and in some cases, have secured the reform of corporate practices alleged to be unlawful or abusive. The skill and experience of our attorneys has been recognized on repeated occasions by courts that have appointed these attorneys to leadership positions in complex multidis-trict or consolidated litigation.” Had this substantial enterprise kept track of the date of its contract with XO (more precisely the date of its latest renewal of the contract), it would not have incurred the modest termination fee that it seeks .to recover by this suit.

Of course its real aim, doubtless, was, in the words of its website, to “recover billions of dollars for the benefit of represented plaintiffs and classes.” It can’t have brought this suit just to recover a $9,000 termination fee (less, actually, because it hadn’t paid the entire fee); it must have hoped that a class would be certified, although a different law firm — Lite DePal-ma Greenberg, LLC — would be representing the class in the litigation.

Ultimately the district judge dismissed the case and entered judgment for XO. The plaintiff appeals the dismissal, complaining of not having been given an opportunity to be heard. But it had multiple options: it could have filed a motion, expanded its arguments at the hearing, or raised its procedural concerns with the district judge. It complains of the judge’s denial of leave to file a third amended complaint. But given the insufficiency of the first and second amended complaints, the denial of leave to file a third is reviewed under the same standard as a dismissal (see Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 524 (7th Cir. 2015)), and is therefore affirmed, ending the litigation.