United States v. Andrew Parker , 927 F.3d 374 ( 2019 )

Case: 18-50058 Document: 00515001333 Page: 1 Date Filed: 06/18/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 18-50058 June 18, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ANDREW MAXWELL PARKER,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
Before HAYNES, GRAVES, and HO, Circuit Judges.
HAYNES, Circuit Judge:
Andrew Parker was convicted of an assortment of fraud crimes more
than a decade ago. Since then, he has revisited our court at least ten times
through a combination of a direct appeal, appeals from 28 U.S.C. § 2255
denials, requests for authorization to file successive § 2255 motions, and a
petition for writ of mandamus. Though the procedural vehicles have changed,
his arguments have not, and we have repeatedly denied his requests for
certificates of appealability (COA) and authorization to file successive § 2255
motions.
Parker once again tried his luck with these arguments before the district
court, filing another motion under § 2255. The district court dismissed the
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motion for lack of jurisdiction because Parker failed to receive authorization
from our court to file a successive petition under § 2255. Parker then requested
reconsideration, which the district court denied. He has now appealed,
implicitly requesting a COA. We DENY Parker a COA, DISMISS his appeal
for lack of jurisdiction, and sanction him for appealing his collateral attack on
his conviction.
But Parker has also appealed a new issue not foreclosed by his prior
efforts. In the district court, he challenged the amount of restitution he was
ordered to pay. Parker argues that the victims of his crimes have recovered
some of their damages through a civil judgment. The statutes governing
restitution grant Parker the right to reduce his restitution order based on
subsequent civil judgments. But Parker failed to present necessary evidence
to succeed on his claim. We thus AFFIRM the district court’s denial of his
request to quash the Government’s writ of execution. 1
I. Background
Andrew Parker used his company, San Antonio Trade Group, Inc.
(“SATG”), to defraud the Export-Import Bank of the United States (“Ex-Im
Bank”). He collaborated with people in Mexico to seek loans from United
States companies based on lies and forged documents. Ex-Im Bank insured
and guaranteed the loans. Once the loans were insured and guaranteed,
Parker diverted millions of dollars in loan money to himself rather than for the
stated purposes. Along the way, he committed wire fraud, money laundering,
tax evasion, tax fraud, and conspiracy.
Eventually Parker was caught and pleaded guilty to those crimes under
a written plea agreement. In accordance with the plea agreement, the district
1 Parker’s motion to determine jurisdiction in advance of appellate briefing is denied
as moot.
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court sentenced Parker to a term of imprisonment and supervised release and
ordered Parker to pay $10 million in restitution.
Since then, Parker has doggedly tried to undo his conviction. Parker’s
first attack on his plea agreement and conviction came when he appealed his
conviction. See United States v. Parker, 372 F. App’x 558 (5th Cir. 2010) (per
curiam). He argued that the indictment, plea agreement, and plea colloquy did
not set out facts that proved he committed some of the alleged crimes. Id. at
560–62. We rejected his arguments and affirmed. Id. at 563.
Less than a year later, Parker filed his first § 2255 motion in April 2011.
His arguments ranged wide, including many related to the arguments he
makes in this appeal: the Government committed a Brady 2 violation or elicited
or permitted false evidence, and his counsel was ineffective by failing to
challenge the wire fraud counts for lack of an interstate nexus. The district
court identified and rejected those arguments. 3 Parker sought reconsideration,
which was also denied. We denied Parker a COA, concluding that all
reasonable jurists would agree that the district court’s order was correct.
Between that motion and the motions leading to this appeal, Parker filed
numerous other motions in the district court. The district court rejected all
those motions on the grounds that they were unauthorized successive motions,
see § 2255(h) (requiring a defendant who files a “second or successive motion”
to receive authorization to file it from the proper court of appeals in accordance
with § 2244), or, to the extent they were not, they were barred by § 2255’s one-
2 Brady v. Maryland, 373 U.S. 83 (1963).
3 The district court did accept Parker’s argument, with which the Government agreed,
that his term of supervised release exceeded the statutory maximum. It amended his
judgment to reflect the statutory maximum. Though Parker appealed the amended judgment
that incorporated this change, we stated that his arguments attacked the denial of the § 2255
order; we concluded the appeal from the amended judgment should be dismissed for lack of
a COA and indicated Parker could seek one in the other appeal he had then filed.
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year period of limitations, see § 2255(f). Each time Parker appealed the district
court’s order, and each time we denied him a COA. The most recent time we
addressed one of Parker’s appeals, a judge of this court imposed sanctions on
him for filing frivolous appeals.
While he filed district court motions, Parker also twice requested that
our court grant him authorization to file a successive motion. We denied
authorization both times—once because Parker had not identified an exception
to the successive motion bar, see In re Parker, 575 F. App’x 415 (5th Cir. 2014),
and another time because the evidence he pointed to did not satisfy the “newly
discovered evidence” exception to that bar.
In all, we have addressed Parker’s case eight times: one affirmance on
direct appeal, five denials of COAs, and two denials of requests for
authorization to file a successive motion. 4
Undeterred, Parker tried again. After each of his previous attempts
failed, Parker filed another motion under § 2255. The district court again
dismissed the motion as an unauthorized successive motion. Parker then
requested reconsideration, which was denied. He then requested
reconsideration of the district court’s denial of reconsideration. The district
court again denied reconsideration. Parker appealed from the order denying
reconsideration of the order denying reconsideration of the § 2255 motion,
which we now call the Order Denying Reconsideration of Reconsideration of
§ 2255.
4 We have also dismissed another appeal for failure to prosecute and denied a recently
filed petition for writ of mandamus that covered the same district court actions that are now
the subject of this appeal.
4
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While he re-pressed his § 2255 motion, Parker also filed a new type of
motion. Parker, now released from prison, 5 moved to quash the Government’s
writ of execution used to enforce the restitution order against him. Though the
type of motion was new, the arguments mostly were not. They largely followed
the exact same arguments made in Parker’s previously rejected § 2255
proceedings.
Parker did, however, make one new argument specific to the motion to
quash. He argued that the Government had collected money that had not been
credited against the restitution order. The district court held a hearing on the
motion to quash and permitted Parker to present evidence in support of his
arguments. Parker presented evidence only about his argument that the
district court lacked jurisdiction over him because there was no interstate wire
transfer. He did not present any evidence that the Government had collected
money on his restitution order. Less than two weeks after the hearing, the
district court denied Parker’s motion to quash.
Parker moved for reconsideration and later filed a supplement to the
motion. The supplement focused heavily on his new argument, particularly
that Ex-Im Bank had already recovered money that should be credited against
his restitution. It identified an affidavit submitted with one of his previous
§ 2255 motions that stated that Ex-Im Bank had collected money from entities
related to his scheme. The district court denied the motion for reconsideration
and its supplement, orders which we collectively call the Orders Denying
Quash Reconsideration. Parker appealed the Orders Denying Quash
Reconsideration, which we consolidated with his other appeal.
5Parker is still on supervised release, so he is still “in custody” for purposes of § 2255.
See United States v. Scruggs, 691 F.3d 660, 662 n.1 (5th Cir. 2012).
5
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II. Discussion
A. Collateral Attack on Conviction
We begin by dismissing for lack of jurisdiction Parker’s appeals to the
extent they challenge his previous conviction. Those aspects of his motions
should be treated as motions for relief under § 2255, regardless of what they
are titled. See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005); United States v.
Hernandes, 708 F.3d 680, 681–82 (5th Cir. 2013). When a defendant appeals
such orders, he must first receive a COA. See 28 U.S.C. § 2253(c)(1)(B). The
absence of a COA deprives this court of jurisdiction to address the merits of
those arguments. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[U]ntil a
COA has been issued federal courts of appeals lack jurisdiction to rule on the
merits of appeals from habeas petitioners.”). To receive a COA, “a petitioner
must show that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.” Id. (brackets and internal quotation marks omitted) (quoting Slack
v. McDaniel, 529 U.S. 473, 484 (2000)).
Reasonable jurists would all agree that the district court lacked
jurisdiction because Parker had not received authorization to file a successive
§ 2255 motion. Parker previously requested, and was denied, authorization to
file a successive § 2255 motion making the same arguments he made below
and now makes on appeal. See In re Parker, No. 14-50911 (5th Cir. Nov. 10,
2014). In denying the motion for authorization, we concluded that “[a]ll of
Parker’s complaints involve matters that could have and should have been
asserted on direct appeal or on appeal from the denial of the initial § 2255
motion.” Id. We also concluded that he had not presented new evidence or
established an actual innocence exception to the successive § 2255 bar. See id.
Despite our denying authorization, Parker filed his motion anyway. The
6
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district court was therefore correct to deny Parker’s § 2255 motion for want of
jurisdiction. See 28 U.S.C. § 2255(h); Crone v. Cockrell, 324 F.3d 833, 836–38
(5th Cir. 2003) (holding that a district court lacks jurisdiction to address a
successive motion without authorization from the court of appeals).
We have previously sanctioned Parker in the amount of $100 for
pursuing frivolous litigation in our court. Because that has not dissuaded him
from further frivolous filings, we again sanction him. It is ORDERED that
Parker pay $1,000 to the Clerk of this court, and he is BARRED from filing in
this court or in any court subject to this court’s jurisdiction any challenge to
his conviction or sentence until the sanction is paid in full unless he first
obtains leave of the court in which he seeks to file such a challenge. Parker is
WARNED again that filing any future frivolous, repetitive, or otherwise
abusive challenges to his conviction or sentence in this court or any court
subject to this court’s jurisdiction will subject him to additional and
progressively more severe sanctions.
B. Attack on Restitution Amount
Parker also appeals the district court’s denial of his request to quash a
writ of execution against his property to collect the restitution he owes. He
argues two different theories for why he does not owe the restitution ordered.
We first assure ourselves of jurisdiction to address the restitution aspects of
his appeal and then explain why the district court did not err in rejecting both
theories.
1. Jurisdiction
Parker asserts that we have jurisdiction over the district court’s denial
of his writ of execution because it is an appeal from a “final decision[]” under
28 U.S.C. § 1291. We have previously said it is “close question” whether a
defendant can appeal the denial of a motion to quash a writ of execution under
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§ 1291. See United States v. King, 123 F. App’x 144, 146 n.1 (5th Cir. 2004)
(per curiam). We now hold that such a denial is a final decision.
In prior times, we said that “the refusal to quash an execution is not a
final judgment.” Noojin v. United States, 164 F. 692, 693 (5th Cir. 1908) (per
curiam) (citing, inter alia, Loeber v. Schrader, 149 U.S. 580, 585 (1893)). Other
circuits have said the same thing. See United States v. Moore, 878 F.2d 331
(9th Cir. 1989) (per curiam); United States v. Stangland, 270 F.2d 893, 894 (7th
Cir. 1959). But those cases were all decided prior to the Federal Debt
Collection Procedures Act of 1990, when the Government would have had to
execute judgment in accordance with state law. See Seth S. Katz, Federal Debt
Collection Under the Federal Debt Collection Procedures Act: The Preemption
of State Real Estate Laws, 46 EMORY L.J. 1697, 1699 (1997). Obviously, those
cases could not and did not decide the question of whether writs of execution
issued under the Federal Debt Collection Procedures Act of 1990 are final
orders. 6 See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.
2008) (explaining that the rule of orderliness prevents altering prior precedent
of our court “absent an intervening change in the law”). Given the change in
the law evinced by the new statutory scheme as discussed below and
6 Even if the order in this case was not a “final decision” under § 1291, we would then
conclude it is an appealable interlocutory order under 28 U.S.C. § 1292(a)(1). That provision
grants appellate jurisdiction over “[i]nterlocutory orders . . . granting, continuing, modifying,
refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions.” Though the
order granting the writ of execution was not labeled an injunction, that does not matter. We
have said that an order that “has ‘the practical effect’ of granting or denying an injunction”
may be appealed under § 1292(a)(1). See United States v. Real Prop. Located at 1407 N.
Collins St., 901 F.3d 268, 272 (5th Cir. 2018) (quoting Abbott v. Perez, 138 S. Ct. 2305, 2319–
20 (2018)). We have found jurisdiction over other interlocutory orders that have a similar,
less burdensome effect on property seized by the Government. See 1407 N. Collins St., 901
F.3d at 271–73. Thus, in the alternative, we conclude the orders in this case are similarly
appealable under § 1292(a)(1).
8
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considering the posture of Parker’s case, we conclude that the order denying
Parker’s motion to quash the writ of execution is a final decision under § 1291.
A final decision is typically one that “ends the litigation on the merits
and leaves nothing for the court to do but execute the judgment.” Hall v. Hall,
138 S. Ct. 1118, 1123–24 (2018) (quoting Ray Haluch Gravel Co. v. Cent.
Pension Fund of Operating Eng’rs and Participating Emp’rs, 571 U.S. 177, 183
(2014)). Parker’s motion to quash the writ of execution of the judgment,
though, is litigation over the execution of the judgment. Courts generally view
such post-judgment motions “as a separate lawsuit from the action which
produced the underlying judgment. Consequently, the requirements of finality
must be met without reference to that underlying judgment.” In re Joint E. &
S. Dists. Asbestos Litig., 22 F.3d 755, 760 (7th Cir. 1994); see also
Studiengesellschaft Kohle mbH v. Eastman Kodak Co., 713 F.2d 128, 131 (5th
Cir. 1983) (concluding that a post-judgment order awarding costs was not final
until the amount of costs was fixed). The dispositive question, then, is whether
there is anything left for the district court to do with respect to execution of the
judgment after denial of Parker’s motion.
There is not. Under the Federal Debt Collection Procedures Act of 1990,
Pub. L. No. 101–647, 104 Stat 4789 (1990), the Government can collect on
judgments in its favor through, among other things, a writ of execution. See
28 U.S.C. § 3203. The writ of execution allows a United States marshal to
“levy” 7 the defendant’s property to satisfy the judgment. See 28 U.S.C.
§ 3203(d) (specifying that writs of execution are levied under the same
procedures as those for writs of attachment in 28 U.S.C. § 3102(d)); id.
§ 3102(d)(1) (authorizing the marshal to levy property). Once levied, the
7“Levy” generally means to “take or seize property in execution of a judgment.” Levy,
BLACK’S LAW DICTIONARY (10th ed. 2014).
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property becomes the Government’s to sell to satisfy the defendant’s judgment.
See 28 U.S.C. § 3203(g). Every writ of execution directs the marshal to not only
levy but also to sell the property, subject to a few irrelevant exceptions. See 28
U.S.C. § 3203(c)(2)(B). The marshal may continue to use the same writ of
execution to levy property until the judgment is satisfied. See 28 U.S.C.
§ 3203(h)(2). Thus, once a district court has issued a writ of execution, all that
remains is for a non-judicial officer to take and dispose of the defendant’s
property. The statutes do not grant Parker a right to challenge the writ of
execution at any later point, and there is nothing left to be done after execution
is complete. The district court’s order is thus final, as two other circuits have
concluded about similar orders. See United States v. Peters, 783 F.3d 1361,
1363 (11th Cir. 2015) (per curiam) (concluding that an order denying a
defendant’s request to transfer to another court and granting the government’s
application for a writ of execution was a final, appealable order); United States
v. Furkin, 165 F.3d 33 (7th Cir. 1998) (unpublished table decision) (holding
that the court had jurisdiction over the district court’s approval of writs of
execution).
2. Merits
Parker makes two arguments about the merits of his restitution order,
neither of which succeed. Parker first argues that the restitution amount was
incorrect the day it was ordered. 8 But we have denied numerous attempts to
collaterally attack a restitution order. 9 That is because once orders become
8 Parker’s argument about the amount of restitution is not subject to the rules of
§ 2255 because we have previously concluded that “complaints concerning restitution may
not be addressed in § 2255 proceedings.” United States v. Hatten, 167 F.3d 884, 887 (5th Cir.
1999) (noting that § 2255 challenges are limited to unlawful custody, not imposition of
monetary penalties).
9 See, e.g., United States v. Goyette, 446 F. App’x 718, 720–21 (5th Cir. 2011) (per
curiam) (concluding that a defendant “cannot use this garnishment proceeding to collaterally
attack the amount of restitution ordered in his criminal case”); United States v. Miller, 599
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final on direct review, “they became res judicata . . . , ‘not only as to every
matter which was offered and received to sustain or defeat the claim or
demand, but as to any other admissible matter which might have been offered
for that purpose.’” Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152 (2009)
(quoting Nevada v. United States, 463 U.S. 110, 130 (1983)). Parker’s first
argument thus fails.
His second argument also fails but for a different reason. On appeal,
Parker argues that Ex-Im Bank “had collected notes and civil judgments for
the total loss for the victims named in his plea agreement.” 10 We agree that if
this statement were proved to be true, Parker would have a valid argument.
The statute governing Parker’s restitution states that his restitution amount
“shall be reduced by any amount later recovered as compensatory damages for
the same loss by the victim in—(A) any Federal civil proceeding; and (B) any
State civil proceeding, to the extent provided by the law of the State.” 18 U.S.C.
§ 3664(j)(2). The use of the words “reduced” and “later recovered” indicates
that Parker can make the argument as it applies to judgments recovered after
the restitution order is final. So, unlike the collateral attack on the restitution
F.3d 484, 490 (5th Cir. 2010) (assuming that, if the writ of audita querela survives in criminal
proceedings, it only applies to a restitution order that, “though correct when rendered, has
since become infirm”); Patel v. Mukasey, 526 F.3d 800, 804 (5th Cir. 2008) (concluding a
defendant “cannot now collaterally attack the validity of his restitution order” because
“whether there was an actual loss sufficient to justify an order of restitution under 18 U.S.C.
§ 3664 is an issue that should have been raised and argued before the sentencing court”).
The fact that Parker frames one of his arguments as an issue of subject matter jurisdiction
does not matter. See Kontrick v. Ryan, 540 U.S. 443, 455 & n.9 (2004) (noting that, although
a litigant may raise an issue of subject matter jurisdiction at any time, “[e]ven subject-matter
jurisdiction . . . may not be attacked collaterally”).
10Parker argued below that he should receive credit against his restitution order for
other post-judgment developments, like restitution payments by a co-conspirator. He has not
briefed any of those issues on appeal. “Failure to brief an issue on appeal constitutes waiver.”
Lara v. Johnson, 141 F.3d 239, 242 n.3 (5th Cir.), reh’g granted, opinion modified, 149 F.3d
1226 (5th Cir. 1998).
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order’s calculations at the time of sentencing, Parker was permitted to make
this argument post-judgment because, practically speaking, that is the only
time he could have made that argument concerning payments allegedly made
after the judgment was entered. 11
But even considering all the evidence Parker presented below, 12 Parker
does not meet the evidentiary requirements of § 3664(j)(2). We have held that
the defendant bears the burden of proving an offset under § 3664(j)(2). See
United States v. Sheinbaum, 136 F.3d 443, 449 (5th Cir. 1998). That burden
includes proving the value of any alleged offset. Id. at 449–50. Parker never
identified to the district court the amount that Ex-Im Bank allegedly recovered
after the entry of his restitution order. His argument thus failed on that
ground.
III. Conclusion
We DENY Parker a COA to appeal the district court’s dismissal of his
challenges to his conviction. He is ORDERED to pay $1,000 to the Clerk of
this court, and he is BARRED from filing in this court or in any court subject
to this court’s jurisdiction any challenge to his conviction or sentence until the
sanction is paid in full unless he first obtains leave of the court in which he
seeks to file such challenge. Parker is WARNED again that filing any future
frivolous, repetitive, or otherwise abusive challenges to his conviction or
We assume without deciding that the vehicle through which he made this
11
argument—a motion to quash a writ of execution—was a proper vehicle.
12 As noted above, Parker moved to quash the writ of execution. When it was denied,
he moved for reconsideration of the motion, this time including more evidence in support of
his argument. He appealed only the denial of reconsideration. We need not decide what legal
standards would have governed the motion for reconsideration below or on appeal because
even if we consider all the evidence under a de novo standard of review, he still fails to make
out a claim.
12
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sentence in this court or any court subject to this court’s jurisdiction will
subject him to additional and progressively more severe sanctions.
We AFFIRM the district court’s Orders Denying Quash Reconsideration.
13