United States v. Lonnie Lillard

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30194

Plaintiff-Appellee,

D.C. No.

v. 3:98-cr-05168-RJB-1

LONNIE EUGENE LILLARD,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted May 14, 2019

Seattle, Washington

Filed August 28, 2019

Before: Michael Daly Hawkins, William A. Fletcher,

and Mark J. Bennett, Circuit Judges.

Opinion by Judge W. Fletcher;

Dissent by Judge Bennett

2 UNITED STATES V. LILLARD

SUMMARY*

Criminal Law

The panel reversed the district court’s order granting the

government’s motion pursuant to § 3664(n) of the

Mandatory Victims Restitution Act to seize funds in the

defendant’s inmate trust account to be applied to the

defendant’s outstanding restitution debt related to a prior

conviction.

The defendant received the funds in his inmate trust

account while he was in pretrial detention awaiting trial on

federal bank fraud charges. Section 3664(n) provides that if

a person “receives substantial resources . . . during a period

of incarceration, such person shall be required to apply the

value of such resources to any restitution or fine still owed.”

The panel held that the change in the defendant’s

custodial sentence – he pled guilty and was sentenced to 196

months imprisonment – does not render the case moot; and

that de novo rather than plain error review is appropriate.

The panel held that the language and statutory context

favor the view that the phrase “period of incarceration” in

§ 3664(n) does not include pretrial detention, and that the rule

of lenity resolves any ambiguity in the defendant’s favor.

Dissenting, Judge Bennett wrote that pretrial detention

qualifies as “a period of incarceration” under § 3664(n), and

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. LILLARD 3

because the statutory language is unambiguous, the rule of

lenity does not apply.

COUNSEL

Lonnie Eugene Lillard, Sheridan, Oregon, pro se Defendant-

Appellant.

Gregory T. Murphy (argued), Assistant Federal Public

Defender, Office of the Federal Public Defender, Seattle,

Washington, for Amicus Curiae Office of the Federal Public

Defender.

Kyle A. Forsyth (argued), Assistant United States Attorney;

Annette L. Hayes, United States Attorney; United States

Attorney’s Office, Seattle, Washington; for Plaintiff-

Appellee.

OPINION

W. FLETCHER, Circuit Judge:

Lonnie Lillard received $6,671.81 in his inmate trust

account while in pretrial detention awaiting trial on federal

bank fraud charges. When the United States Attorney’s

Office learned of his receipt of the $6,671.81, it sought to

apply the funds toward Lillard’s outstanding restitution debt

from an unrelated 1998 conviction. The United States moved

to seize Lillard’s funds pursuant to § 3664(n) of the

Mandatory Victims Restitution Act (“MVRA”), codified in

relevant part at 18 U.S.C. §§ 3613A, 3663A, 3664. Section

3664(n) of the MVRA provides that if a person “receives

4 UNITED STATES V. LILLARD

substantial resources . . . during a period of incarceration,

such person shall be required to apply the value of such

resources to any restitution or fine still owed.” 18 U.S.C.

§ 3664(n) (emphasis added). The United States argued that

§ 3664(n) applies to pretrial detainees because they are in

“federal custody.” Over Lillard’s pro se objection, the district

court ordered the seizure of the $6,671.81 pursuant to

§ 3664(n). On appeal, the Federal Defender, as amicus

counsel for Lillard, argues that the phrase “period of

incarceration” in § 3664(n) does not include pretrial

detention. We agree and reverse.

I. Background

A. The Mandatory Victims Restitution Act

The MVRA requires the district court to order full

restitution for certain crimes in which an “identifiable victim”

has suffered “physical injury or pecuniary loss.” 18 U.S.C.

§§ 3663A(c)(1)(A), (B); see Lagos v. United States, 138

S. Ct. 1684, 1687–88 (2018) (detailing the crimes and victim

losses covered by the MVRA).

Section 3664 of the MVRA is entitled “Procedure for

issuance and enforcement of order of restitution.” 18 U.S.C.

§ 3664. It establishes procedures for the probation office,

defendant, identified victims, and district court to follow in

determining the amount of restitution the district court should

impose during a defendant’s sentencing. The probation

office, for example, is required to include in its presentence

report “information sufficient for the court to exercise its

discretion in fashioning a restitution order,” including

information on “the losses to each victim” and “the economic

circumstances of each defendant.” 18 U.S.C. § 3664(a). The

UNITED STATES V. LILLARD 5

probation office must also notify all identified victims of the

“offenses of which the defendant was convicted,” in order to

allow the victims an opportunity to “submit information”

concerning their losses. 18 U.S.C. § 3664(d)(2)(A)(i), (iii).

The defendant must file “an affidavit” describing his financial

resources, needs, and earning capacity. 18 U.S.C.

§ 3664(d)(3).

When a district court orders restitution it must “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). If a defendant cannot pay full

restitution “under any reasonable schedule of payments,” the

district court may order “nominal periodic payments” in

perpetuity. 18 U.S.C. § 3664(f)(3)(B).

Once a restitution order is in place, the defendant must

notify the court “of any material change in the defendant’s

economic circumstances that might affect the defendant’s

ability to pay restitution.” 18 U.S.C. § 3664(k). Ordinarily,

the district court addresses changed economic circumstances

under § 3664(k) of the MVRA. Under § 3664(k), a district

court “may . . . adjust the [defendant’s] payment schedule, or

require immediate payment in full, as the interests of justice

require.” Id. (emphasis added). In one narrow circumstance,

however, the MVRA “require[s]” that newly received funds

be applied toward restitution. 18 U.S.C. § 3664(n). Section

3664(n) provides:

If a person obligated to provide restitution, or

pay a fine, receives substantial resources from

any source, including inheritance, settlement,

or other judgment, during a period of

incarceration, such person shall be required to

6 UNITED STATES V. LILLARD

apply the value of such resources to any

restitution or fine still owed.

Id. (emphasis added). This appeal requires us to interpret the

phrase “period of incarceration” in § 3664(n).

B. Factual and Procedural Background

In 1998, Lonnie Lillard pleaded guilty to Possession of

Counterfeited Securities and a related count of Conspiracy.

The district court sentenced Lillard to 34 months

imprisonment and ordered him to pay $79,130.55 in

restitution. The district court did not specify a minimum

payment schedule for the restitution order. Instead, the court

ordered the restitution amount due “in full immediately,”

despite finding that “Mr. Lillard has no income or assets or

the likelihood of either in the immediate future.” Lillard

made almost no restitution payments during the following

years and the government made no discernible effort to

collect any from him.

In January 2016, the United States charged Lillard with

Conspiracy to Commit Bank Fraud. Pending trial, Lillard

was held in pretrial detention at the Federal Detention Center,

SeaTac, near Seattle, Washington. While in pretrial

detention, Lillard received $6,671.81 in his inmate trust

account. The source of the funds is unclear. Lillard had

planned to use some of the funds to pay for legal assistance

in his pending case. He also claims to have planned to use

some of the money to communicate with friends and family,

to “periodically help[] out his parents who are 91 and

80 years old,” and to purchase items from the inmate

commissary.

UNITED STATES V. LILLARD 7

When the U.S. Attorney’s Office learned of the

$6,671.81, it took steps to seize the full sum and apply it

toward Lillard’s 1998 restitution obligation. At the request of

the U.S. Attorney’s Office, the Bureau of Prisons encumbered

Lillard’s account to prevent him from accessing the funds.

An Assistant United States Attorney then filed with the

district court a Motion to Require Payment from Inmate Trust

Account. The motion sought a court order allowing the

government to seize the $6,671.81 pursuant to § 3664(n) of

the MVRA, which applies only to funds received during a

“period of incarceration.” 18 U.S.C. § 3664(n). The

government argued that § 3664(n) applied “squarely” to

Lillard because he was in “federal custody” while in pretrial

detention.

Lillard responded pro se to the government’s motion. He

argued that any modification of his restitution obligation

should be made under § 3664(k), the MVRA provision

governing restitution order modifications, rather than under

§ 3664(n). He also argued, citing Ward v. Chavez, 678 F.3d

1042 (9th Cir. 2012), that his 1998 restitution order is

“unlawful” because the district court had not set a minimum

payment schedule despite finding that Lillard was unable to

pay in full immediately. Lillard requested an evidentiary

hearing and that counsel be appointed to represent him.

The district court appointed counsel and granted a

continuance to allow counsel time to prepare a response.

Counsel did not file a response, however, until after the

deadline had passed, and then filed only an informal

memorandum and a request for another continuance to allow

for “further research and investigation.” The district court

denied both counsel’s request for a continuance and Lillard’s

request for an evidentiary hearing.

8 UNITED STATES V. LILLARD

On August 3, 2016, more than three months before

Lillard’s scheduled trial date on his criminal charge, the

district court issued a two-page order granting the

government’s motion. The order directed the Bureau of

Prisons to pay $6,671.81 from Lillard’s inmate trust account

to the Clerk of the U.S. District Court for the Western District

of Washington, to be applied toward Lillard’s 1998 restitution

obligation.

Lillard appealed pro se the district court’s order. We

appointed the Federal Defender for the Western District of

Washington (“Amicus”) as amicus counsel. We directed

Amicus to address, along with other issues, whether

18 U.S.C. § 3664(n) applies to (1) pretrial detention, and

(2) detention or incarceration unrelated to the judgment

imposing the restitution order. As to issue (1), we agree with

Amicus that § 3664(n) does not apply during periods of

pretrial detention. We therefore reverse the district court’s

August 3, 2016 order. We do not reach issue (2).

We have jurisdiction under 28 U.S.C. § 1291.

II. Discussion

This appeal presents the issue whether the phrase “period

of incarceration” in 18 U.S.C. § 3664(n) includes a period of

pretrial detention. Amicus argues that § 3664(n) “appl[ies]

only when a defendant is ‘incarcerated’ following ‘conviction

of an offense,’ and should not apply when the presumptively-

innocent defendant is detained before trial.” The government

makes three arguments in response: First, that Lillard’s claim

is moot because he has since been incarcerated following a

conviction for Conspiracy to Commit Bank Fraud; second,

that we may review the district court’s interpretation of

UNITED STATES V. LILLARD 9

“period of incarceration” only for plain error because Lillard

waived this argument below; and third, that even under de

novo review, the district court did not err in interpreting

§ 3664(n). We hold that Lillard’s action is not moot, that de

novo review is appropriate, and that § 3664(n) does not apply

during periods of pretrial detention.

A. Lillard’s Action is Not Moot

During the pendency of this appeal, Lillard pleaded guilty

to Conspiracy to Commit Bank Fraud, was sentenced to

196 months imprisonment, and was ordered to pay over five

million dollars in restitution. The government argues that the

change in Lillard’s custodial status renders his case moot.

“A case is moot when the ‘parties lack a legally

cognizable interest in the outcome.’” Johnson v. Rancho

Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1020 (9th Cir.

2010) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S.

388, 396 (1980)). Lillard’s interest in this appeal is apparent.

If we vacate the district court’s order, the government must

return the $6,671.81 it has seized.

The government argues that this outcome would not

provide Lillard “effective relief” because his funds can be re-

seized under § 3664(n), given the change in his custodial

status. See In re Castaic Partners II, LLC, 823 F.3d 966,

968–69 (9th Cir. 2016) (“The test for mootness of an appeal

is whether the appellate court can give the appellant any

effective relief in the event that it decides the matter on the

merits in his favor.” (citation omitted)). The government

assumes that because Lillard is currently subject to

incarceration following a conviction, § 3664(n)

“undisputedly” applies to him. The assumption is mistaken.

10 UNITED STATES V. LILLARD

Section 3664(n) applies only if a defendant “receives

substantial resources . . . during a period of incarceration.”

18 U.S.C. § 3664(n) (emphases added). Though we take no

position on the matter, it is debatable (“disputable”) whether

the return of funds improperly seized during pretrial detention

to a defendant now in post-conviction incarceration qualifies

as receipt of substantial resources “during a period of

incarceration” within the meaning of § 3664(n). Id. It is also

debatable whether the $6,671.81 sum constitutes “substantial

resources.” Since the district court issued its order, at least

one court has held that “substantial resources” under

§ 3664(n) refers narrowly to “windfalls or sudden financial

injections.” United States v. Hughes, 914 F.3d 947, 951 (5th

Cir. 2019).

Finally, Lillard’s action is not moot even though the

government may attempt, in the alternative, to re-seize his

funds pursuant to § 3664(k). As noted above, § 3664(k)

grants the district court discretion in addressing a defendant’s

changed economic circumstances, allowing for potential

“effective relief” on remand. Castaic Partners II, 823 F.3d

at 968. Lillard’s appeal is therefore not moot.

B. Plain Error Review Does Not Apply

“The ordinary rule in criminal cases—established by

Federal Rule of Criminal Procedure 52(b) and by Supreme

Court precedent—is that ‘plain error’ review applies to

arguments raised for the first time on appeal.” United States

v. Yijun Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016). The

government argues that we should review the district court’s

interpretation of § 3664(n) for plain error because Lillard did

not argue below that § 3664(n) applies only to periods of

UNITED STATES V. LILLARD 11

incarceration following a conviction. We hold that de novo,

rather than plain error, review is appropriate for three reasons.

First, “plain error review typically applies where an issue

raised on appeal was not ‘brought to the [district] court’s

attention.’” United States v. Pallares-Galan, 359 F.3d 1088,

1095 (9th Cir. 2004) (emphasis and alteration in original)

(quoting Fed. R. Crim. Proc. 52(b)). The government argued

before the district court that § 3664(n) applied to Lillard

because, as a pretrial detainee, he was in “federal custody.”

The issue of whether § 3664(n) applies to periods of pretrial

detention was thus brought to the district court’s attention.

Second, “[o]nce a . . . claim is properly presented, a party

can make any argument in support of that claim . . . .” Yee v.

Escondido, 503 U.S. 519, 534 (1992) (string cite omitted).

“[I]t is claims that are deemed waived or forfeited, not

arguments.” Pallares-Galan, 359 F.3d at 1095. Lillard

claimed below that § 3664(k), rather than § 3664(n), was the

proper provision under which to address his changed

economic circumstances. Amicus’s argument that § 3664(n)

does not apply to pretrial detainees is a further argument in

support of that claim.

Third, when this court is “presented with a question that

is purely one of law and where the opposing party will suffer

no prejudice as a result of the failure to raise the issue in the

trial court,” this court is not limited to plain error review.

United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106

(9th Cir. 2009) (internal quotations and citation omitted); see

also Yijun Zhou, 838 F.3d at 1011. Whether § 3664(n)

applies to pretrial detention is a pure question of law, and the

United States, which has had an adequate opportunity to

12 UNITED STATES V. LILLARD

defend its interpretation below and on appeal, suffers no

prejudice.

C. Interpretation of § 3664(n)

“The interpretation of a statutory provision must begin

with the plain meaning of its language.” United States v.

Flores, 729 F.3d 910, 914 (9th Cir. 2013). To determine

plain meaning, “we examine not only the specific provision

at issue, but also the structure of the statute as a whole,

including its object and policy.” Children’s Hosp. & Health

Center v. Belshe, 188 F.3d 1090, 1096 (9th Cir. 1999). “If

the language has a plain meaning or is unambiguous, the

statutory interpretation inquiry ends there.” CVS Health

Corp. v. Vividus, LLC, 878 F.3d 703, 706 (9th Cir. 2017)

(citation omitted). If the statutory language lacks a plain

meaning, we may “employ other tools, such as legislative

history, to construe the meaning of ambiguous terms.” Benko

v. Quality Loan Service Corp., 789 F.3d 1111, 1118 (9th Cir.

2015). If a criminal statute remains ambiguous even “after

considering text, structure, history, and purpose,” the rule of

lenity obliges the court to select the least-harsh interpretation

consistent with the statutory language. Barber v. Thomas,

560 U.S. 474, 488 (2010).

We hold that the language and statutory context of

§ 3664(n) favor Amicus’s view that § 3664(n) does not apply

to periods of pretrial detention, and that the rule of lenity

resolves any remaining ambiguity in Lillard’s favor.

1. Language and Statutory Context of § 3664(n)

The phrase “period of incarceration,” in isolation, “gives

rise to more than one reasonable interpretation.” Woods v.

UNITED STATES V. LILLARD 13

Carey, 722 F.3d 1177, 1181 (9th Cir. 2013) (quoting

DeGeorge v. U.S. Dist. Ct. for Cent. Dist. of Cal., 219 F.3d

930, 939 (9th Cir. 2000). Leading dictionaries define

“incarceration” broadly as “[t]he act or process of confining

someone; IMPRISONMENT,” and “a confining or state of

being confined: IMPRISONMENT.” Black’s Law Dictionary

(8th ed. 2004), Webster’s Third New Int’l Dictionary (2002).

So defined, “incarceration” encompasses not only

imprisonment following conviction, but other forms of

confinement, including administrative detention, immigration

detention, and pretrial detention. However, not all forms of

confinement are relevant to each statutory context.

Depending on a statute’s object and purpose, “incarceration”

may have a narrower meaning. See, e.g., 5 U.S.C.

§ 8148(b)(1)–(2) (making clear that “period of incarceration”

refers to incarceration “pursuant to . . . conviction of an

offense”).

Thus, if a statute does not define “incarceration,” courts

must look to the statute as a whole to determine that term’s

meaning. See Mohamad v. Palestinian Auth., 566 U.S. 449,

454 (2012) (“[W]ords that can have more than one meaning

are given content . . . by their surroundings.”) (quoting

Whitman v. Am. Trucking Ass’ns Inc., 531 U.S. 457, 466

(2001); see also Mont v. United States, 139 S. Ct. 1826, 1829

(2019) (considering both “text and statutory context” when

interpreting the term “imprisonment” in 18 U.S.C. § 3624(e)).

In United States v. Latimer, for example, we had to decide

“whether confinement in a community treatment center

constitutes incarceration under the meaning of § 4A1.2(e)(1)

of the Sentencing Guidelines.” 991 F.2d 1509, 1510 (9th Cir.

1993). Because “the Guidelines do not define incarceration,”

we chose the interpretation that “best fits the Guidelines’

general structure and purpose,” and held that “confinement in

14 UNITED STATES V. LILLARD

a community treatment center does not constitute

incarceration under the meaning of § 4A1.2(e)(1).” Id.

at 1511, 1514.

The “general structure and purpose” of the MVRA

support the conclusion that § 3664(n) refers only to

incarceration after a conviction. Id. at 1511. As noted above,

§ 3664, which is entitled “Procedure for issuance and

enforcement of order of restitution,” establishes procedures

for determining the amount of restitution that the district

court should impose at sentencing after a defendant’s

conviction. Section 3664 is structured around the stages of a

sentencing hearing. It establishes pre-hearing procedures,

§§ 3664(a)–(d), procedures governing the hearing and

imposition of the restitution order, §§ 3664(e)–(j), and

procedures concerning post-hearing alteration and

enforcement of the order, §§ 3664(k)–(n). All three stages

occur after a defendant has been convicted of a crime. Given

§ 3664’s focus on the period after conviction, it is most

natural to interpret “period of incarceration” in § 3664(n) as

referring to incarceration after a conviction.

Section 3664(n)’s purpose supports this interpretation.

Both Amicus and the United States agree that § 3664(n)

creates a narrow exception for substantial resources received

“during a period of incarceration” because, during such a

period, defendants can rely on the Bureau of Prisons to

provide for their subsistence needs. This rationale does not

apply during periods of pretrial detention, which are often

brief or contingent. Resources that defendants receive during

pretrial detention, especially if that detention is for a short or

indeterminate amount of time, may be necessary for their

subsistence upon release.

UNITED STATES V. LILLARD 15

In sum, both the statutory context and purpose of

§ 3664(n) support the conclusion that the phrase “period of

incarceration” in § 3664(n) does not encompass pretrial

detention. These considerations are not so weighty, however,

that they render the government’s competing interpretation

clearly unreasonable. Nor does the legislative history of the

MVRA settle the matter. Where “a reasonable doubt persists

about a statute’s intended scope even after resort to ‘the

language and structure, legislative history, and motivating

policies’ of the statute[,]” courts may apply the rule of lenity.

Moskal v. United States, 498 U.S. 103, 108 (1990) (internal

citations omitted).

2. The Rule of Lenity

The rule of lenity “demand[s] resolution of ambiguities in

criminal statutes in favor of the defendant . . . .” Hughey v.

United States, 495 U.S. 411, 422 (1990) (citation omitted).

The rule extends to statutes that set criminal punishments as

well as statutes that carry criminal penalties if violated. See

id. (applying the rule of lenity to a restitution provision of the

Victim and Witness Protection Act); United States v.

Thompson/Center Arms Co., 504 U.S. 505, 517–518, 518

n.10 (1992) (plurality opinion) (employing the rule of lenity

to interpret “a tax statute . . . in a civil setting” because the

statute “has criminal applications”); Leocal v. Ashcroft,

543 U.S. 1, 11 n.8 (2004).

The rule of lenity applies to § 3664(n) of the MVRA for

two reasons. First, restitution is part of a defendant’s

punishment under the MVRA. See S. REP. 104-179, 20

(1996) (“The committee believes that restitution must be

considered a part of the criminal sentence, and that justice

cannot be considered served until full restitution is made.”).

16 UNITED STATES V. LILLARD

Section 3664(n) implements the restitution “part of the

sentence” in a harsher manner than § 3664(k) by requiring the

immediate discouragement of the full value of newly-

received substantial resources. Second, the MVRA provides

that failure to pay restitution carries criminal penalties.

18 U.S.C. § 3664(m)(1)(A). A defendant who is “required”

to turn over “substantial resources” received “during a period

of incarceration,” but fails to do so may be subject to

resentencing, a criminal fine, or a new prosecution. See

18 U.S.C. §§ 3614, 3613A, 3615. To ensure “fair warning”

of § 3664(n)’s scope, we must resolve ambiguities in

§ 3664(n) “in favor of the defendant.” United States v. Bass,

404 U.S. 336, 348(9th Cir. 1971).

Applying the rule of lenity, we resolve any lingering

ambiguity in the phrase “period of incarceration” in Lillard’s

favor. Section 3664(n) does not apply to periods of pretrial

detention. We therefore reverse the district court’s August

3rd, 2016, order directing the seizure of Lillard’s $6,671.81.1

REVERSED.

1

Appellant’s Motion to Take Judicial Notice [Dkt no. 17], filed

December 19, 2017, is GRANTED.

UNITED STATES V. LILLARD 17

BENNETT, Circuit Judge, dissenting:

Pretrial detention qualifies as “a period of incarceration”

under 18 U.S.C. § 3664(n), and because the statutory

language is unambiguous, the rule of lenity does not apply.

Thus, I would affirm the district court’s order directing that

the funds at issue be used to pay Lonnie Lillard’s outstanding

restitution obligations.1

I.

The issue before us is one of statutory

interpretation—whether pretrial detention qualifies as “a

period of incarceration” under § 3664(n).

Because “[t]he preeminent canon of statutory

interpretation requires us to presume that the legislature says

in a statute what it means and means in a statute what it says

there[,] . . . our inquiry begins with the statutory text, and

ends there as well if the text is unambiguous.” BedRoc Ltd.,

LLC v. United States, 541 U.S. 176, 183 (2004) (internal

brackets, quotation marks, and citation omitted). “It is well

established that ‘when the statute’s language is plain, the sole

function of the courts—at least where the disposition required

by the text is not absurd—is to enforce it according to its

terms.’” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004)

(quoting Hartford Underwriters Ins. Co. v. Union Planters

Bank, N.A., 530 U.S. 1, 6 (2000)). And we typically give

terms their ordinary meanings if they are not defined in the

statute. See FCC v. AT & T Inc., 562 U.S. 397, 403 (2011).

1

I agree with the majority that this case is not moot and that de novo

review applies.

18 UNITED STATES V. LILLARD

Here, the statute does not define “a period of

incarceration.” But since 1996 when § 3664(n) was enacted

as part of the Mandatory Victims Restitution Act (MVRA),

“incarcerate” has meant: “To shut up in prison; to put in

confinement; to imprison.” 7 Oxford English Dictionary 783

(2d ed. 1989); see also Black’s Law Dictionary 878 (10th ed.

2014) (defining “incarceration” as “[t]he act or process of

confining someone; imprisonment”). These broad definitions

encompass pretrial detention.

A recent Supreme Court decision supports that

“incarceration” includes pretrial detention. In Mont v. United

States, 139 S. Ct. 1826 (2019), the Court found that the broad

definitions of “imprison,” one of which was “to incarcerate,”

encompass pretrial detention. Id. at 1832. Thus, it follows

that incarceration, being synonymous with imprisonment,

also includes pretrial detention. The Court in Mont also

observed that “[i]f Congress intended a narrower

interpretation, it could have easily used narrower language,”

and that the Court “cannot override Congress’ choice to

employ [a] more capacious phrase.” Id. at 1832–33. The

same is true here. If Congress intended for § 3664(n) to

apply only to post-conviction periods of detention, it could

have easily done so by, for example, adding the phrase “after

a conviction” or “following a conviction” immediately after

the phrase “during a period of incarceration.” But Congress

chose not to do so.2

2

The majority cites 5 U.S.C. § 8148(b)(1)–(2) to support its

argument. There, Congress used explicit language to limit the term

“period of incarceration” to post-conviction confinement. Thus,

§ 8148(b)(1)–(2) supports my view that if Congress wanted to limit

§ 3664(n) to periods of post-conviction confinement, it knew just how to

do so.

UNITED STATES V. LILLARD 19

The context in which “incarceration” is used also shows

that Congress intended § 3664(n) to be construed broadly.

The subsection reads: “If a person obligated to provide

restitution . . . receives substantial resources from any source

. . . during a period of incarceration, such person shall be

required to apply the value of such resources to any

restitution . . . still owed.” 18 U.S.C. § 3664(n) (emphasis

added). The broad language used throughout the subsection

reinforces that Congress intended this subsection to apply

broadly, and no language in the statute suggests that Congress

intended to limit it in the way that the majority believes it

should be limited.

Finally, giving the term “incarceration” its ordinary

meaning does not lead to absurd results. A person in pretrial

detention does not need financial resources to support his

subsistence needs. Thus, when that person “receives

substantial resources . . . during a period of incarceration,”

§ 3664(n), those excess resources should be applied toward

his existing restitution obligations. This is reasonable and

consistent with the purpose of the MVRA, “to ensure that

victims of crime receive full restitution.” Dolan v. United

States, 560 U.S. 605, 612 (2010).

Because § 3664(n)’s plain language encompasses periods

of pretrial detention, and such an interpretation does not

remotely lead to absurdity, I would enforce the statute as

Congress wrote it and hold that it applies to periods of pretrial

detention.

II.

The majority errs by failing to give “incarceration” its full

and fair meaning. See Scalia & Garner, Reading Law: The

20 UNITED STATES V. LILLARD

Interpretation of Legal Texts, 101 (2012) (“Without some

indication to the contrary, general words . . . are to be

accorded their full and fair scope. They are not to be

arbitrarily limited.”). Instead, the majority holds that the

statute is ambiguous because the term “incarceration” could

be construed more narrowly. But were that reasoning valid,

then a statute would always be ambiguous whenever

Congress used a broad term. That a statute contains a broad

term cannot automatically create ambiguity. See Arizona v.

Tohono O’odham Nation, 818 F.3d 549, 557 (9th Cir. 2016)

(“[A] word or phrase is not ambiguous just because it has a

broad general meaning under the [general words are to be

understood in a general sense] canon of statutory

construction.”).

The majority also does not identify any absurdity that

would result from giving “incarceration” its full and fair

meaning. The majority suggests that applying § 3664(n) to

periods of pretrial detention might be unfair in some cases.

But Congress made that policy decision, and the fact that the

statute’s application might lead to seemingly unfair results

cannot override the statute’s plain meaning—the policy

choice is for the legislative branch of government, not the

judicial. See Guido v. Mount Lemmon Fire Dist., 859 F.3d

1168, 1175 (9th Cir. 2017) (“[I]t is not our role to choose

what we think is the best policy outcome and to override the

plain meaning of a statute[.]”).3

3

I note that the language in § 3664(n) does not require a person to

apply all of his resources toward his restitution obligations. It requires

only that a person apply “substantial resources” received “during a period

of incarceration.” 18 U.S.C. § 3664(n).

UNITED STATES V. LILLARD 21

Ignoring the plain language of the statute, the majority

holds that the structure of § 3664 shows that “incarceration”

does not encompass pretrial detention. But the majority’s

analysis is unconvincing because, logically, any statute

governing enforcing a restitution order necessarily applies

only after a conviction. What the statute’s structure does not

tell us is whether Congress intended § 3664(n) to apply to

persons in pretrial detention with existing restitution orders

(though, as noted, the statute’s unambiguous text does tell

us). Thus, I do not believe that the statute’s structure sheds

any light on whether Congress intended “incarceration” to be

limited in the way that the majority limits it (again, a

limitation that Congress could have chosen to actually

incorporate in the statute’s text).

And I believe it is simply wrong to rely on the structure

of a statute, while ignoring its express language. “Reliance

on context and structure in statutory interpretation is a ‘subtle

business, calling for great wariness lest what professes to be

mere rendering becomes creation and attempted interpretation

of legislation becomes legislation itself.’” King v. Burwell,

135 S. Ct. 2480, 2495–96 (2015) (quoting Palmer v.

Massachusetts, 308 U.S. 79, 83 (1939)). Thus, “[c]ourts

should rarely depart from a statute’s clear meaning because

it risks creating a perception that they are inserting their own

policy preferences into a law.” Guido, 859 F.3d at 1174.

Because § 3664(n) is not ambiguous, the rule of lenity

does not apply. See United States v. Overton, 573 F.3d 679,

693 (9th Cir. 2009) (“Where there is no statutory ambiguity

at the outset, ‘the rule of lenity simply has no application.’”

(quoting Albernaz v. United States, 450 U.S. 333, 343

(1981))).

22 UNITED STATES V. LILLARD

III.

Adhering to the canons of statutory interpretation, I would

hold that pretrial detention qualifies as “a period of

incarceration” under § 3664(n). The majority reaches the

opposite result by erroneously creating an ambiguity that does

not exist. Thus, I respectfully dissent.4

4

I do not find Lillard’s remaining arguments challenging the district

court’s order persuasive.