United States of America v. Adam Carson

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0268p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ADAM CARSON,
Defendant-Appellant.
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No. 21-3518
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:17-cr-00008-1—Donald C. Nugent, District Judge.
Argued: November 29, 2022
Decided and Filed: December 16, 2022
Before: WHITE, THAPAR, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio,
for Appellant. Rema A. Ina, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for
Appellee. ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cincinnati, Ohio, for Appellant. Rema A. Ina, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee. Adam Carson, Lewisburg, Pennsylvania, pro se.
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OPINION
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THAPAR, Circuit Judge. When the district court took all but $300 from Adam Carson’s
inmate trust account to pay his court-ordered restitution, it made no findings and cited no
authorities. Because the law requires more, we vacate and remand for further findings.
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No. 21-3518 United States v. Carson Page 2
I.
In 2018, a federal jury convicted Carson of bank robbery and witness tampering.
18 U.S.C. §§ 2113(a), 1512(b)(1). The district court then sentenced Carson to 240 months’
imprisonment and 3 years’ supervised release. It also ordered Carson to “immediately” begin
paying $5,590 in restitution to the victim bank in installments of 25% of his gross monthly
income through the Inmate Financial Responsibility Program (“IFRP”). R. 107, Pg. ID 1465.
We affirmed this sentence. See United States v. Carson, 796 F. App’x 238, 251 (6th Cir. 2019).
While incarcerated, Carson periodically receives prison wages and cash deposits from his
family in his inmate trust account, which is maintained by the Bureau of Prisons (“BOP”). After
discovering that the BOP “maintain[ed] in its possession, custody, or control approximately
$4,037.89 in funds belonging to [Carson],” the government asked the district court to order the
BOP to turn over all but $300 of those funds and apply them to Carson’s restitution obligation.
R. 160, Pg. ID 1689. In support of its request, the government cited 18 U.S.C. § 3664(n), which
requires a defendant who “receives substantial resources from any source, including inheritance,
settlement, or other judgment, . . . to apply the value of such resources to any restitution or fine
still owed.”
The very next day, and without giving Carson an opportunity to be heard, the district
court granted the motion, turning over “the full amount of the non-exempt funds” to the
government, less $300 for any “miscellaneous expenses.” R. 161, Pg. ID 1696. Although
the district court did not define “non-exempt,” it presumably referred to categories exempted in
18 U.S.C. § 3613(a)(1).1 The order contained no findings and cited no authorities.
Carson appealed. Because this case concerns several matters of first impression, we
appointed counsel to represent Carson, who then refined his arguments in supplemental briefing.
118 U.S.C. § 3613(a)(1) prevents the federal government from applying the following categories of
property toward a defendant’s restitution obligation: (1) “wearing apparel and school books”; (2) “fuel, provisions,
furniture, and personal effects”; (3) “books and tools of a trade, business, or profession”; (4) “unemployment
benefits”; (5) “undelivered mail”; (6) “certain annuity and pension payments”; (7) “workmen’s compensation”; (8)
“judgments for support of minor children”; (10) “certain service-connected disability payments”; and (12)
“assistance under [the] Job Training Partnership Act.” 18 U.S.C. § 3613(a)(1) (exempting funds defined under
section 6334(a)(1)–(8), (10), (12) of the Internal Revenue Code of 1986, codified at 26 U.S.C. § 6334).

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No. 21-3518 United States v. Carson Page 3
Through counsel, Carson now argues that the district court violated the terms of his judgment
and repayment agreement. He also contends that he never received process due under the
Constitution and the three statutes the government now relies on for the garnishment: 18 U.S.C.
§§ 3613, 3664(k), and 3664(n).
At oral argument, the government suggested for the first time that a large portion of the
approximately $4,000 deposited in Carson’s account consisted of federal stimulus payments
issued during the COVID-19 pandemic. According to the government, “once the United States
realized that [Carson] received th[is] money,” it was entitled “to get it back.” Oral Argument
42:59–43:06. So it moved to garnish the stimulus checks received by Carson and thousands of
inmates like him.
Because the district court failed to make the minimal findings necessary to determine
whether Carson’s funds fell within these statutes, we vacate and remand.
II.
At the outset, Carson argues that the district court lacked authority to garnish his funds
because he complied with his judgment and repayment agreement. We disagree.
Regardless of Carson’s initial payment schedule, the sentencing court retains the
authority to modify that schedule under the statutes at issue here. See United States v. Phillips,
9 F.4th 382, 384–85, 388 (6th Cir. 2021). Indeed, section 3664(n) provides for automatic
modification, provided that the necessary findings are made. If Carson receives any windfall,
that amount would automatically apply toward his restitution obligation. See United States
v. Hughes, 914 F.3d 947, 951 (5th Cir. 2019). And section 3664(k) permits the court to “adjust
the payment schedule” or “require immediate payment in full” after receiving notice of any
“material change” to Carson’s economic circumstances.
Carson relies on an unpublished case to argue that the district court lacked such authority.
See United States v. Badger, 581 F. App’x 541 (6th Cir. 2014). In Badger, the district court
ordered the BOP “to seize half of the funds in [defendant]’s prison account and half of all future
deposits” after concluding that the defendant wouldn’t be deterred by more prison time because

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No. 21-3518 United States v. Carson Page 4
he was already serving a life sentence. Id. at 542. On appeal, we vacated the court’s order
because the statutes at issue in that case only permitted garnishment when the defendant defaults
on his payments. Id. at 543. But that case is inapposite. First, section 3664(n)’s windfall
provision wasn’t at issue in Badger, as it is here. Second, unlike Carson, the defendant in
Badger wasn’t subject to a restitution-payment plan. Instead, he was fined. Finally, the
government in Badger conceded that the garnishment was improper, but no such concession has
been made here.
For these reasons, Carson’s mere compliance with his judgment and payment agreement
does not bar garnishment.
III.
We next conclude that the district court failed to make sufficient findings under all three
statutes cited by the government.
A.
Below, the government argued that it was entitled to garnish Carson’s funds under
18 U.S.C. § 3664(n). That section requires a defendant who “receives substantial resources from
any source” to apply those resources toward his outstanding restitution obligation. Id. But
before the district court may grant such relief under section 3664(n), it “must first determine the
source of the funds.” United States v. Evans, 48 F.4th 888, 891 (8th Cir. 2022) (cleaned up).
Then the court must determine if the funds are sufficiently “substantial” to warrant garnishment.
See id. at 892. But the district court made neither finding.
First, the district court didn’t determine the source of Carson’s funds. This inquiry is
necessary because section 3664(n) covers payments from outside sources, not gradually
accumulated prison wages.2 To see why, consider the text. Section 3664(n) applies not just to
any funds, but to “substantial resources.” 18 U.S.C. § 3664(n) (emphasis added); see Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195 (2012)
2We thus agree with the Fifth, Eighth, and Ninth Circuits, which are the only courts that have addressed
this issue. See, e.g., Hughes, 914 F.3d at 951; United States v. Kidd, 23 F.4th 781, 787 (8th Cir. 2022); United
States v. Poff, 781 F. App’x 593, 594–95 (9th Cir. 2019).

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No. 21-3518 United States v. Carson Page 5
(discussing the canon of noscitur a sociis, which allows a word to be defined by its “associates”).
And prison wages aren’t substantial.
Rather, a resource is “substantial” if it is of “ample or considerable amount or size,”
“weighty,” or of “real significance.” E.g., Substantial, Oxford English Dictionary Online (3d ed.
2022). Corpus linguistics evidence from the 1990s—when the “substantial resource” language
was added to section 3664(n)—confirms this understanding.3 The Corpus of Contemporary
American English shows that the general public at that time most often associated “substantial”
with “big,” “large,” “important,” “significant,” and “extensive.” Brigham Young Univ., Corpus
of Contemporary American English, http://corpus.byu.edu/coca. But prison wages are none of
those things. Indeed, inmates accumulate 12¢ to 40¢ per hour for institutional work
assignments,4 and 23¢ to $1.15 for UNICOR projects.5 Simply put, gradual payments of such
small amounts are not “substantial.”
Moreover, Carson’s prison wages have already been accounted for. Under the terms of
Carson’s judgment and payment plan, the government agreed to garnish no more than 25% of his
monthly wages. To garnish more than 25% of Carson’s wages, the government would have to
modify Carson’s payment plan. But section 3664(n) doesn’t authorize the court to make such
modifications. As a result, prison wages aren’t subject to section 3664(n). In practice, this
means that if all $4,000 in Carson’s account came from wages that he saved after complying
with his payment plan, the government wouldn’t be allowed to garnish anything under section
3664(n). But if Carson received $3,000 in cash payments from an outside source and $1,000 in
prison wages, then the government might be entitled to the $3,000.
3See Wilson v. Safelite Grp., Inc., 930 F.3d 429, 439–40 (6th Cir. 2019) (Thapar, J., concurring in part and
in the judgment) (explaining the value of corpus linguistics in interpreting legal texts); State v. Rasabout, 356 P.3d
1258, 1283 (Utah 2015) (Lee, A.C.J., concurring in part and concurring in the judgment) (noting that jurists may use
corpus evidence and other linguistic sources not appearing in the parties’ briefs if the underlying question of
statutory interpretation is squarely presented to the court).
4Fed. Bureau of Prisons, Custody & Care: Work Programs,
https://www.bop.gov/inmates/custody_and_care/work_programs.jsp (last visited Dec. 2, 2022).
5Fed. Bureau of Prisons, UNICOR: Program Details,
https://www.bop.gov/inmates/custody_and_care/unicor_about.jsp (last visited Dec. 2, 2022).

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No. 21-3518 United States v. Carson Page 6
Thus, to ensure that no prison wages are garnished under section 3664(n), district courts
must make findings. And here, the court didn’t determine whether any of Carson’s $4,000 came
from his prison wages prior to garnishment. To be sure, the government asserted at oral
argument that most of this money came from stimulus payments. But it didn’t provide such
evidence below. Therefore, the district court’s section 3664(n) order wasn’t valid.
Second, after identifying the source of Carson’s funds, the court must determine whether
they are sufficiently “substantial” to warrant garnishment. See Evans, 48 F.4th at 892. Of
course, “substantial” is a relative term that requires courts to consider the economic
circumstances of each inmate. As a result, “what constitutes substantial resources is an issue that
requires careful, case-specific analysis.” Evans, 48 F.4th at 892 (citation omitted). But for
current purposes, we agree with the Ninth Circuit: to a prisoner receiving no more than a
hundred dollars a month in wages, a cash deposit of $2,663.05 from outside sources would be
“substantial.” See Poff, 781 F. App’x at 595. It’s one thing to give an inmate a few dollars to
spend at the commissary, but quite another to deposit a few thousand dollars in his account.
To be sure, before he was appointed counsel, Carson conceded that some of the money
seized by the government came from his family. And during oral argument, the government
asserted that Carson received stimulus checks. If the record clearly showed that all of the
garnished funds came from these sources and were sufficiently “substantial,” the district court
could’ve permissibly ordered garnishment under section 3664(n). See United States v. White,
745 F. App’x 646, 648 (7th Cir. 2018); United States v. Robinson, 467 F. App’x 100, 102 (3d
Cir. 2012). But the record contains no such findings. Rather, the district court emptied Carson’s
entire account, less $300 for any “miscellaneous expenses,” without determining whether
Carson’s prison wages would be garnished by its order. R. 161, Pg. ID 1696.
In sum, because section 3664(n) covers “substantial resources” but not gradually
accumulated prison wages, additional findings are needed before Carson’s funds can be seized
under this section.

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No. 21-3518 United States v. Carson Page 7
B.
On appeal, the government argues for the first time that 18 U.S.C. § 3664(k) justifies an
adjustment to the defendant’s restitution order. In particular, the government claims that the
deposited stimulus checks qualify as a “material change in the defendant’s economic
circumstances.” Id. And once there is a material change, the district court may “adjust the
payment schedule” or “require immediate payment in full” of a defendant’s restitution
obligation. Id. True enough, but the district court did neither (perhaps because the government
didn’t cite this section below).
Instead, the district court “simply ordered the Bureau of Prisons to release all funds from
[Carson]’s inmate trust account,” less $300. It issued a garnishment order; it didn’t amend
Carson’s payment plan. Such an order, however, doesn’t qualify as an “adjust[ment] to the
payment schedule” or as an order requiring “immediate payment in full.” See, e.g., United States
v. Robinson, 44 F.4th 758, 761 (8th Cir. 2022) (noting that “adjustments” alter the plan “set forth
in the judgment”).
Even if the district court had adjusted the schedule or required immediate payment in full,
section 3664(k) only allows such modifications “as the interests of justice require.” But the
district court never made any interests-of-justice findings. Without such a finding, we can’t have
“meaningful appellate review.” United States v. Jones, 980 F.3d 1098, 1116 (6th Cir. 2020).
Thus, section 3664(k) does not justify the district court’s action.6
C.
Finally, the order lacked the findings required by 18 U.S.C. § 3613. Under that
provision, the government may treat a defendant’s restitution obligation as a lien in its favor and
acquire the funds in an inmate’s trust account. See id.; United States v. Sayyed, 862 F.3d 615,
6Section 3664(k) also states that “[t]he Attorney General shall certify to the court that the victim or victims
owed restitution by the defendant have been notified of the change in circumstances.” 18 U.S.C. § 3664(k). Though
the record doesn’t indicate whether the Attorney General made any such certifications, this fact doesn’t help
Carson’s case. To be sure, this certification requirement is necessary when the defendant invokes section 3664(k) to
receive “a deferment of restitution.” United States v. Hill, 205 F.3d 1342 (Table), *1 (6th Cir. 1999). But this
provision is meant to protect the victim, not the person ordered to make restitution. See United States v. Rand, 924
F.3d 140, 143–44 (5th Cir. 2019).

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No. 21-3518 United States v. Carson Page 8
618–19 (7th Cir. 2017). However, this authority has two limits. First, the government’s lien is
only valid “[u]pon filing a notice of lien in the manner in which a notice of tax lien would be
filed . . . [under] the Internal Revenue Code of 1986.” 18 U.S.C. § 3613(d). Second, section
3613 liens are subject to the Consumer Credit Protection Act, which limits what the government
may garnish. See id. § 3613(a)(3); 15 U.S.C. §§ 1672, 1673; Kidd, 23 F.4th at 784 n.2.
Nothing here indicates whether the government filed a notice of lien in the manner
prescribed by the Internal Revenue Code. And because the district court ordered the BOP to turn
over Carson’s funds without making any findings, it’s unclear whether the government garnished
Carson’s prison wages in violation of the Consumer Credit Protection Act.
* * *
Because the district court didn’t indicate what statutory authority it was relying on or
make the required findings, we need not address what more—if anything—the constitutional
guarantee of due process requires. We accordingly vacate the order and remand for further
findings.

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