United States of America v. Mitchel A. Fuchs

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 4, 2024*
Decided January 5, 2024
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 23-1832
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MITCHEL A. FUCHS,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Western Division.
No. 07 CR 50072-1
Iain D. Johnston,
Judge.
O R D E R
Mitchel Fuchs was convicted of using the mail and wires to commit mortgage
fraud, see 18 U.S.C. §§ 1341, 1343, and, among other parts of his sentence, the court
ordered Fuchs to pay restitution. Years after Fuchs’s release from custody, the
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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government moved to garnish 25% of his wages to satisfy that debt. The district court
granted the motion. Because the district court properly enforced Fuchs’s sentence and
the law when it ordered him to turn over 25% of his earnings, we affirm.
After Fuchs was convicted of mortgage fraud, the parties addressed restitution at
his sentencing hearing. Fuchs denied that the victims’ losses were attributable to him,
but his counsel did not contest the amount of restitution. The district court ordered
Fuchs to pay $183,956.75 in restitution to five payees—four companies and one
person—and imposed a prison term of 12 years, which began in 2009.
Fuchs contested his sentence several times. His first appeal successfully
challenged only the district court’s application of the Sentencing Guidelines.
See United States v. Fuchs, 635 F.3d 929, 933 (7th Cir. 2011). We dismissed his second
appeal under Anders v. California, 386 U.S. 738, 744 (1967). See United States v. Fuchs,
No. 11-2657, 2012 WL 213345 (7th Cir. 2012). Later, Fuchs unsuccessfully petitioned for
a writ of habeas corpus under 28 U.S.C. § 2255. See Fuchs v. United States,
No. 13 C 50099, 2014 WL 1652151 (N.D. Ill. Apr. 24, 2014). He briefly asserted, among
other things, that his appellate counsel failed to object to the restitution amount, but the
district court denied relief because Fuchs failed to develop any argument. Fuchs also
unsuccessfully moved the district court to alter restitution; the court explained that,
under United States v. Anderson, it could not change his sentence. 583 F.3d 504, 508
(7th Cir. 2009).
This appeal stems from the government’s motion to garnish 25% of Fuchs’s
earnings. In the motion, it explained that despite his release from prison in 2016, Fuchs
had not paid restitution since 2019 and a balance of $139,608.67 remained. Fuchs
opposed the motion. He argued that the court should vacate or amend the restitution
order because some of the corporate payees were dissolved and the individual payee
had died. In any case, Fuchs insisted, under the language of the restitution order, the
garnishment rate should be capped at 10%. In granting the government’s motion and
ordering that Fuchs turn over 25% of his earnings, the court repeated that Anderson
limited its authority to amend the restitution order. It added that Fuchs should have
challenged the restitution order at his first appeal. Finally, the court explained that the
restitution order set a floor of 10% rather than a 10% ceiling, and the government is
statutorily permitted to garnish up to 25% of his wages.
On appeal, Fuchs appears to challenge the garnishment order on three grounds.
We review that order de novo. See Kelley v. Stevanovich, 40 F.4th 779, 784 (7th Cir. 2022).

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No. 23-1832 Page 3
Fuchs reasserts that the district court had authority to amend the restitution
amount because some payees are now dead or dissolved; thus, the restitution order
(and garnishment) should reflect those changes. But the funds collected during
restitution first go to the Clerk of Court, who then distributes those funds to designated
victims. And regardless, Fuchs provides no evidence of the payees’ death or
dissolution. Further, a district court does not acquire authority to modify a restitution
order upon the death or dissolution of a payee. A district court may modify a restitution
order only when a defendant’s economic circumstances warrant an adjustment, or if a
change is otherwise authorized by statute or rule. See United States v. Simon, 952 F.3d
848, 853 (7th Cir. 2020); 18 U.S.C. § 3664(o) (identifying circumstances when court may
adjust a restitution order). But Fuchs points to no statute or rule permitting a court to
amend the restitution amount when a payee is no longer around. And a defendant’s
economic circumstances have not changed merely because a payee no longer seeks
restitution. See Simon, 952 F.3d at 853. Finally, nothing in our cases states that, when a
payee does not seek restitution, a defendant may retain the funds for himself. See United
States v. Pawlinski, 374 F.3d 536, 539–41 (7th Cir. 2004) (ruling that when victims did not
claim restitution intended for them, district court lacked authority to redirect those
funds to “nonvictims”).
Second, Fuchs also appears to contest the government’s ability to garnish 25% of
his wages, but his argument fails. The government may enforce the restitution order,
see 18 U.S.C. § 3613(a), and it may do so by using the enforcement mechanisms in the
Federal Debt Collection Procedures Act, which include garnishment. 28 U.S.C.
§§ 3001(a), 3205(a); see also United States v. Kollintzas, 501 F.3d 796, 801 (7th Cir. 2007)
(authorizing civil garnishment order in underlying criminal case). Under the applicable
statutes, that garnishment amount may rise to 25% of a defendant’s earnings.
See 18 U.S.C. § 3613(a)(3); 15 U.S.C. § 1673(a)(1). Thus, the government has authority to
garnish Fuchs’s wages at a 25% rate. To the extent Fuchs argues that the language of the
judgment in his case said otherwise, he is mistaken. The judgment included a minimum
Fuchs was required to pay during supervised release, but he is no longer on supervised
release. And the judgment states, if “restitution [is] not paid in full during the term of
incarceration,” then Fuchs “shall pay to the clerk of court at least ten percent of the
defendant’s gross earnings.” (emphasis added). Thus, the words “at least” set a floor of
10%, not a ceiling. See United States v. Wykoff, 839 F.3d 581, 582 (7th Cir. 2016).
Finally, Fuchs seemingly takes issue with the original imposition and amount of
restitution. But Fuchs waived any challenge to the original restitution order when he

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failed to object to it in his initial appeal or develop an argument in a collateral attack
that might excuse that omission from his appeal. See Simon, 952 F.3d at 853.
We have considered his other arguments, but Fuchs does not sufficiently develop
them to merit discussion.
AFFIRMED

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