United States of America v. David Ryan Tejera

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID RYAN TEJERA,
Defendant-Appellant.
No. 21-50208
D.C. Nos.
2:10-cr-01049-FMO-1
2:10-cr-01049-FMO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Argued and Submitted November 18, 2022
Pasadena, California
Before: NGUYEN and SUNG, Circuit Judges, and FITZWATER,** District
Judge.
David Tejera appeals from an order directing the Bureau of Prisons to turn
over funds in his inmate trust account to the Clerk of the United States District
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
FILED
DEC 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Court for payment of his court ordered restitution.1 We have jurisdiction under 28
U.S.C. § 1291. We review the district court’s interpretation of § 3664(n) de novo,
United States v. Berger, 574 F.3d 1202, 1204 (9th Cir. 2009), and the district
court’s decision to authorize a payment for abuse of discretion, see United States v.
Gagarin, 950 F.3d 596, 607 (9th Cir. 2020). We vacate and remand.
1. The Mandatory Victims Restitution Act requires an inmate who
“receives substantial resources from any source, including inheritance, settlement,
or other judgment, during a period of incarceration . . . to apply the value of such
resources to any restitution or fine still owed.” 18 U.S.C. § 3664(n).2 Tejera
contends that the payment plan imposed by the district court limits his obligation to
$25 per quarter. The government counters that the payment plan sets a $25 per
quarter minimum payment, but Tejera still “owes” the full amount of his
outstanding restitution.
The plain language of § 3664(n) supports the government’s position. At the
1 Tejera filed an unopposed motion for judicial notice of seven district court orders
cited by the government in its answering brief. Dkt. 25. Because the “court may
take judicial notice of undisputed matters of public record, which may include
court records available through PACER,” see United States v. Raygoza-Garcia,
902 F.3d 994, 1001 (9th Cir. 2018), we GRANT Tejera’s motion.
2 Tejera does not contest that his Covid-19 stimulus check qualifies as a sudden
windfall. See United States v. Poff, 781 F. App’x 593, 594 (9th Cir. 2019) (“We
are persuaded by the Fifth Circuit’s analysis in United States v. Hughes that
§ 3664(n) ‘refers to windfalls or sudden financial injections . . . that become
suddenly available’ to the defendant.” (quoting 914 F.3d 947, 951 (5th Cir.
2019))).

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time of filing, Tejera owed the victims of his crime $6,210.45. The district court’s
payment plan does not alter the fact that Tejera still owes his full restitution
obligation. See 18 U.S.C. § 3771(a)(6) (stating that a crime victim has “[t]he right
to full and timely restitution as provided in law”). Accordingly, the “restitution
still owed” by Tejera refers to the full restitution—$6,210.45—not $25 per quarter.
2. The government provides insufficient evidence that the funds in
Tejera’s account at the time of the government’s motion resulted from a Covid
stimulus check and not some other source to which § 3664(n) does not apply. The
government relies on Inspector Sangirardi’s declaration that identifies only the
following transactions: (1) Tejera’s $1,400.00 stimulus check was deposited into
his account on May 14, 2021; (2) between May 14, 2021 and August 25, 2021,
Tejera’s account received $680.00 from “other sources” and paid $350.00 “to an
individual outside the BOP”; and (3) between May 14, 2021 and August 25, 2021,
Tejera made a $30.00 quarterly restitution payment. If Tejera’s inmate trust
account had a $0 balance prior to receipt of the stimulus check, these transactions
would result in a $1,700.00 balance on August 25, 2021. But the record shows that
Tejera’s inmate trust account contained $822.89 on that date. Therefore, the
evidentiary record regarding the source of the funds in Tejera’s inmate trust

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account contains gaps.3
Because the record is unclear about the source of the funds seized from
Tejera’s inmate trust account, we vacate and remand for the district court to
determine whether Tejera’s account contained at least $800 in Covid stimulus
funds. See, e.g., Poff, 781 F. App’x at 595; see also Saucillo v. Peck, 25 F.4th
1118, 1133 (9th Cir. 2022) (“[F]actfinding is the basic responsibility of district
courts, rather than appellate courts.” (quoting Pullman-Standard v. Swint, 456 U.S.
273, 291 (1982))).
3. Finally, the parties disagree whether the funds sought qualify as
“substantial” for the purposes of § 3664(n). The record is not sufficiently
developed on this question for meaningful appellate review. On remand, the
district court should determine in the first instance whether the funds sought by the
government qualify as “substantial” under the statute.
VACATED AND REMANDED.
3 The government argues briefly that its judgment lien permits it to collect from
Tejera’s inmate account “[s]eparate and apart from § 3664(n).” But the
government brought its initial motion pursuant to § 3664(n), not the civil
garnishment proceedings outlined in 18 U.S.C. § 3613(c). Moreover, this
argument was not sufficiently developed, so we do not address it further. See
Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996). The government
also raised a § 3664(k) argument for the first time at oral argument.
Section 3664(k) was not raised in the government’s briefing, and we decline to
address it for the first time here. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th
Cir. 1999).

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