USA v. Backari Mackey

Filing

Opinion issued by court as to Appellant Backari Mackey. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-13614

Date Filed: 04/28/2016

Page: 1 of 4

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13614
Non-Argument Calendar
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D.C. Docket No. 2:98-cr-00108-LSC-TMP-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BACKARI MACKEY,
a.k.a. Bakari Mackey,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
________________________
(April 28, 2016)
Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Bakari Mackey appeals pro se the denial of his motion to reconsider his
request to enforce an order that suspended the collection of a fine imposed against

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Date Filed: 04/28/2016

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him in a criminal action. After entry of that order, the Department of Justice
classified Mackey’s fine as past due and referred his debt to the Department of the
Treasury, which later seized the proceeds of a settlement that Mackey had received
in a civil action. Mackey moved to enforce the order that suspended collection of
his fine, to terminate the referral as erroneous, and to recover the settlement
proceeds. The district court denied Mackey’s motion and ruled that the government
was entitled to seize the settlement proceeds under a statute that requires an inmate
to reduce an outstanding fine with funds he receives “from any source.” 18 U.S.C.
§ 3664(n). Mackey filed a motion to reconsider and repeated his argument that the
referral was erroneous, but the district court summarily denied the motion. We
vacate the order denying Mackey’s motion to reconsider, and we remand for the
district court to consider Mackey’s argument to terminate the referral.
We review an order denying a motion for reconsideration for abuse of
discretion. Equity Inv. Partners, LP v. Lenz, 594 F.3d 1338, 1342 (11th Cir. 2010).
“A person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof.” 5 U.S.C. § 702.
The district court abused its discretion when it denied Mackey’s motion to
reconsider without considering his argument to terminate the referral. The district
court was obligated to address Mackey’s argument to “correct what he deems to be
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an error by the U.S. Attorney of [referring] . . . the . . . court-ordered fine” in order
to determine whether the Justice Department could refer his debt and to determine
the amount of that debt. The Justice Department may refer an outstanding fine to
the Treasury Department to collect through its Treasury Offset Program. 31 U.S.C.
§ 3716; 31 C.F.R. § 285.5. But the debt must be “past due,” 31 U.S.C.
§ 3716(c)(6)(A), and the Justice Department must, upon request of the debtor,
conduct an administrative review, id. § 3716(a)(3); 28 C.F.R. § 11.12(d)(1)–(6),
and give “written notice of its decision to the debtor,” id. § 11.12(d)(6), before
collecting through the offset program. The district court failed to consider
Mackey’s argument, raised in his motions to terminate and for reconsideration, that
his fine was not past due because the collection process had been suspended. The
district court also failed to consider whether the Justice Department complied with
its obligations to conduct an administrative review and to give Mackey written
notice of its decision.
It is also unclear whether the referral affected the amount of Mackey’s debt.
In 1999, the district court imposed a fine of $25,000, and a statement that the
Bureau of Prisons issued in 2003 stated that Mackey owed $24, 919.33, but the
Justice Department referred a debt of $31,119.33. Nothing in the record explains
the additional $6,200 sought. Although the United States may charge penalties
when a fine is delinquent or in default, see 18 U.S.C. §§ 3572(h), 3572(i), 3612(g),
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it must notify the debtor of the delinquency or default, id. § 3612(d), (e), and there
is nothing in the record to suggest that the United States provided notice to
Mackey.
The United States argues that Mackey “was not denied the opportunity for
review of his claims,” “his claims were without merit,” and he “failed to supply a
legal defense to his enrollment,” but these arguments are misplaced. Even if there
were sufficient information in the record to support these arguments, we would
leave them to the district court to address them in the first instance. Documents
submitted by the United States establish only that it gave Mackey notice of the
referral and that Mackey timely requested an administrative review.
The United States also argues that “there is no requirement under 31 U.S.C.
§ 3716 that the government respond to a defendant’s unsupported claims,” but the
statute provides that a government agency “may collect by administrative offset
only after giving the debtor . . . an opportunity for a review . . . of the decision” to
refer. Id. § 3716(a)(3) 28 C.F.R. § 11.12(d)(1)–(6). The record does not reflect that
the Justice Department conducted an administrative review.
We VACATE the order denying Mackey’s motion for reconsideration, and
we REMAND for the district court to consider Mackey’s argument to terminate
the referral.
VACATED AND REMANDED.
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