United States v. Novak ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-55838
Plaintiff-Appellant,
v.  D.C. No.
CV-03-06706-CBM
RAYMOND P. NOVAK,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Chief Judge, Presiding
Argued and Submitted
February 16, 2006—Pasadena, California
Filed March 23, 2006
Before: Alfred T. Goodwin, Betty B. Fletcher, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan;
Dissent by Judge B. Fletcher
3173
UNITED STATES v. NOVAK 3175
COUNSEL
Debra Yang, United States Attorney, Leon W. Weidman, and
Brent A. Whittlesey, Assistant United States Attorneys of Los
Angeles, California, for the appellant.
Martin S. Bakst of Encino, California, for the appellee.
OPINION
CALLAHAN, Circuit Judge:
The United States appeals from the district court’s order
quashing its writ of garnishment of Raymond Novak’s bene-
fits under a pension plan subject to the Employment and
Retirement Income Security Act of 1974 (“ERISA”). The dis-
3176 UNITED STATES v. NOVAK
trict court held that such a garnishment was prohibited by
ERISA’s anti-alienation provision, 29 U.S.C. § 1056(d)(1).
We reverse and remand because we determine that the Man-
datory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C.
§ 3663A, in conjunction with 18 U.S.C. § 3613, constitutes a
statutory exception to ERISA’s anti-alienation provision.
I
The criminal information filed against Novak alleged that
between 1995 and 1999 he transported certain valuable tele-
phone boards in interstate commerce knowing that the boards
were stolen. His then-wife was employed by Nestle U.S.A.,
Inc. (“Nestle”). Novak’s wife would order the telephone
boards for Nestle, then steal the boards and deliver them to
Novak, who would sell them. Novak was also charged with
failing to report the income he received from selling the stolen
telephone boards on his 1997 federal income tax returns.
Novak pleaded guilty to charges of conspiracy to transport
stolen goods in violation of 18 U.S.C. § 371 and filing false
income tax returns in violation of 26 U.S.C. § 7206. The dis-
trict court sentenced him to 24 months’ imprisonment and
ordered him to pay restitution in the amount of $3,360,051.67.
From February 1990 to March 2000, Novak worked as the
director of telecommunications at Robinsons-May Depart-
ment Stores (“May Company”). During that time, he earned
pension benefits that were fully vested at the time of his plea.
It appears that under the pension plan, Novak, after reaching
the age of sixty-five, would be entitled to an annual payment
of almost $11,000, or he could immediately withdraw the
entire amount, which had a market value of $142,245.11 as of
September 30, 2003.
On September 18, 2003, at the government’s request, the
Clerk of the district court issued a post-judgment writ of gar-
nishment to the May Company for amounts owed to Novak.
UNITED STATES v. NOVAK 3177
The writ was issued pursuant to the garnishment provisions of
the Federal Debt Collection Procedures Act (“FDCPA”), 28
U.S.C. § 3205. Novak objected to the garnishment, the gov-
ernment responded, and the district court held a hearing.
On March 5, 2004, the district court issued an order quash-
ing the writ of garnishment. The government filed a timely
notice of appeal. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
II
When it quashed the writ of garnishment, the district court
recognized that a pension fund was the type of property that
may be reached by the United States pursuant to the FDCPA.
The district court, however, relying primarily on the Supreme
Court’s opinion in Guidry v. Sheet Metal Workers Nat’l Pen-
sion Fund, 493 U.S. 365, 376 (1990), and our decision in
United States v. Jackson, 229 F.3d 1223 (9th Cir. 2000), held
that garnishment was prohibited by ERISA’s anti-alienation
provision. The district court rejected the government’s argu-
ment that the MVRA created an exception to ERISA’s anti-
alienation provision.
Both the interpretation of ERISA and the applicability of
other statutes to ERISA are questions of law that we review
de novo. Shaver v. Operating Eng’rs Local 428 Pension Trust
Fund, 332 F.3d 1198, 1201 (9th Cir. 2003); Kayes v. Pac.
Lumber Co., 51 F.3d 1449, 1455 (9th Cir. 1995).
[1] Our evaluation of this case starts with the Supreme
Court’s explanation of ERISA’s anti-alienation provision in
Guidry. There, the Court held that the anti-alienation provi-
sion prohibited the imposition of a constructive trust on, or
garnishment of, a pension covered by ERISA “unless some
exception to the general statutory ban is applicable.” Guidry,
493 U.S. at 372.
3178 UNITED STATES v. NOVAK
In Guidry, the Court was concerned with the remedial pro-
visions of the Labor-Management Reporting and Disclosure
Act of 1959 (“LMRDA”), 29 U.S.C. § 501(a) (1982). This
statute provided, under certain circumstances, for a private
right of action “to recover damages or secure an accounting
or other appropriate relief for the benefit of the labor organi-
zation.” Guidry, 493 U.S. at 374. The Court assumed, without
deciding, that the LMRDA’s statutory provision might autho-
rize the imposition of a constructive trust, and stated that the
question presented was “whether that authorization may over-
ride ERISA’s prohibition on the alienation of pension bene-
fits.” Id. at 374-75. The Court held that it did not, reasoning
that the LMRDA would not be:
modified, impaired, or superseded by our refusal to
allow ERISA pension plans to be used to effectuate
the remedial goals of the LMRDA. Were we to
accept respondents’ position, ERISA’s anti-
alienation provision would be inapplicable whenever
a judgment creditor relied on the remedial provisions
of a federal statute.
Id. at 375.
The Court also declined to find any “generalized equitable
exception” to ERISA’s anti-alienation provision. Id. at 376. It
observed that the anti-alienation provision reflected a “consid-
ered congressional policy choice, a decision to safeguard a
stream of income for pensioners (and their dependents, who
may be, and perhaps usually are, blameless), even if that deci-
sion prevents others from securing relief for the wrongs done
them.” Id. It stressed that “[i]f exceptions to this policy are to
be made, it is for Congress to undertake that task.” Id.
[2] The Court further explained that the creation of excep-
tions was particularly problematic in the context of an anti
garnishment provision because such a provision, by defini-
tion, hinders the collection of a lawful debt. Id. Thus, a
 UNITED STATES v. NOVAK 3179
restriction on garnishment “can be defended only on the view
that the effectuation of certain broad social policies some-
times takes precedence over the desire to do equity between
particular parties.” Id. (emphasis in original). The Court cau-
tioned that courts “attempting to carve out an exception that
would not swallow the rule would be forced to determine
whether application of the rule in particular circumstances
would be ‘especially’ inequitable.” Id. at 377. For this reason,
the Court concluded that “the identification of any exception
should be left to Congress.” Id.
We determine that with the passage of the MVRA, Con-
gress did what the Supreme Court in Guidry indicated it could
do: enact a statutory exception to ERISA’s anti-alienation
provision. We find that Congress enacted a statutory excep-
tion because (a) the MVRA is a specific collection statute
designed to provide victims with restitution, and (b) Congress
provided for restitution orders to be enforced like tax liens,
which are enforceable against ERISA pension benefits.
[3] While the purposes behind the remedial provision of the
LMRDA at issue in Guidry were not clear, Congress enacted
the MVRA specifically “to ensure that the loss to crime vic-
tims is recognized,” and to establish that in addition to other
penalties authorized by law, “the offender makes restitution to
the victim.” S. REP. NO. 104-179, at 12 (1995), as reprinted
in 1996 U.S.C.C.A.N. 924, 925-27.1 To that end, the MVRA
1
Senate Report 104-179 includes the following statements:
The purpose of H.R. 665 is to improve the administration of jus-
tice in Federal criminal cases by requiring Federal criminal
defendants to pay full restitution to the identifiable victims of
their crimes.
...
The committee amendment is intended first, to require that full
restitution be ordered to the victims of all covered offenses in
which there is an identifiable victim, second, to establish one set
3180 UNITED STATES v. NOVAK
requires district courts to order restitution for victims in cases
involving property loss.2 This is the type of broad social pol-
icy determination that the Supreme Court in Guidry noted was
appropriate for Congress, but not the courts.
[4] The MVRA also provides that restitution orders are to
be enforced by the government using all of the remedies that
are available for the collection of criminal fines. 18 U.S.C.
§ 3664(m)(1)(A)(i); see also United States v. Phillips, 303
F.3d 548, 550-51 (5th Cir. 2002) (holding that the “MVRA
provides the Government authority to enforce victim restitu-
tion orders in the same manner that it recovers fines and by
all other available means”). In addition, 18 U.S.C. § 3613,
which is entitled “Civil remedies for satisfaction of an unpaid
fine,” states that “an order of restitution made pursuant to [the
MVRA] is a lien in favor of the United States on all property
and rights to property of the person fined as if the liability of
the person fined were a liability for a tax assessed under the
Internal Revenue Code of 1986.” 18 U.S.C. § 3613(c). Thus,
Congress has made the policy choice to elevate the collection
of criminal restitution orders in the debt-collection food chain
to equal the position enjoyed by the Internal Revenue Service
in the collection of its unpaid tax demands.
of procedures for the issuance of restitution orders in Federal
criminal cases, and third, to consolidate the procedures for the
collection of unpaid restitution with existing procedures for the
collection of unpaid fines, while at the same time strengthening
these procedures.
S. REP. NO. 104-179, at 12-14 (1995), as reprinted in 1996 U.S.C.C.A.N.
924, 925-27.
2
18 U.S.C. § 3663A(a)(1) states:
Notwithstanding any other provision of law, when sentencing a
defendant convicted of an offense described in subsection (c), the
court shall order, in addition to, or in the case of a misdemeanor,
in addition to or in lieu of, any other penalty authorized by law,
that the defendant make restitution to the victim of the offense or,
if the victim is deceased, to the victim’s estate.
UNITED STATES v. NOVAK 3181
[5] In § 3613, Congress also defined what limited types of
property are beyond the government’s reach. Subsection (a)
of 18 U.S.C. § 3613 states:
Enforcement. The United States may enforce a judg-
ment imposing a fine in accordance with the prac-
tices and procedures for the enforcement of a civil
judgment under Federal law or State law. Notwith-
standing any other Federal law (including section
207 of the Social Security Act), a judgment impos-
ing a fine may be enforced against all property or
rights to property of the person fined, except that—
(1) property exempt from levy for taxes
pursuant to section 6334(a)(1), (2), (3), (4),
(5), (6), (7), (8), (10), and (12) of the Inter-
nal Revenue Code of 1986 shall be exempt
from enforcement of the judgment under
Federal law; . . . .
Two features of this statute inform our position that ERISA
pension plans are not exempted. First, the statute specifically
states “[n]otwithstanding any other Federal law[,]” all proper-
ties may be reached except those specifically exempted by the
statute. Second, none of the exemptions in 18 U.S.C.
§ 3613(a)(1) apply to ERISA pension plans.3 We further note
that as some of the exemptions are quite detailed and concern
properties similar to ERISA pension plans, we cannot assume
that the exclusion of ERISA pension plans was an oversight.4
3
Additional exemptions are set forth in § 3613(a)(2) and (3), but they
have no bearing on this case.
4
For example, 26 U.S.C. § 6334(a)(6) and (7), which exempt certain
annuity and pension payments and workmen’s compensation payments,
respectively state:
(6) Certain annuity and pension payments. Annuity or pension
payments under the Railroad Retirement Act, benefits under the
Railroad Unemployment Insurance Act, special pension pay-
3182 UNITED STATES v. NOVAK
Indeed, we have already so held, having determined that
the government may levy a tax lien against a delinquent tax-
payer’s ERISA protected assets. In re McIntyre, 222 F.3d
655, 660 (9th Cir. 2000). In McIntyre we reversed the lower
court’s determination that ERISA’s anti-alienation provision
prevented the IRS from levying on the benefits from any
ERISA-governed pension plan. We explained:
the Internal Revenue Code expressly indicates that
no other federal law shall exempt property from the
IRS’s authority to levy a delinquent taxpayer’s prop-
erty under § 6331. See 26 U.S.C. § 6334(c). More-
over, ERISA’s anti-alienation clause cannot prevent
the IRS from undertaking what would otherwise be
a valid exercise of its levy authority under 26 U.S.C.
§ 6331, because ERISA itself has a saving clause
that states: “Nothing in this subchapter [which
includes the anti-alienation provision] shall be con-
strued to alter, amend, modify, invalidate, impair, or
supersede any law of the United States.” 29 U.S.C.
§ 1144(a).
Id. at 660. We concluded that “it is plain that the IRS’s
authority to proceed against a delinquent taxpayer’s interest in
benefits from an ERISA-governed plan is not constrained by
ERISA’s anti-alienation provision.”5 Id. The issue, thus, is
ments received by a person whose name has been entered on the
Army, Navy, Air Force, and Coast Guard Medal of Honor roll
(38 U.S.C. 1562), and annuities based on retired or retainer pay
under chapter 73 of title 10 of the United States Code.
(7) Workmen’s compensation. Any amount payable to an indi-
vidual as workmen’s compensation (including any portion
thereof payable with respect to dependents) under a workmen’s
compensation law of the United States, any State, the District of
Columbia, or the Commonwealth of Puerto Rico.
5
We also noted that other courts had reached the same conclusion, citing
Shanbaum v. United States, 32 F.3d 180, 182-83 (5th Cir. 1994)
UNITED STATES v. NOVAK 3183
reduced to whether the government’s writ of garnishment to
enforce a criminal restitution order has the same reach as a
writ of garnishment to enforce a tax lien. We hold that it does.
Although a tax liability to the federal government is con-
ceptually different from an order of restitution to a defrauded
party, Congress, in enacting the MVRA, made the social pol-
icy decision to treat the latter in the same manner as the former.6
As noted, the Supreme Court in Guidry recognized that
exemptions to ERISA’s anti-alienation provision concerned
broad social policies, which were properly within the prov-
ince of Congress. Guidry, 493 U.S at 376-77. In enacting the
MVRA and providing for the enforcement of restitution
orders through 18 U.S.C. § 3613, Congress — as the Supreme
Court in Guidry indicated that it could — has created a statu-
tory exception to ERISA’s anti-alienation provision.
We note that our conclusion is in accord with lower court
decisions from around the country. E.g., United States v.
Lazorwitz, No. 5:04 CV 161 F, 2005 WL 3732741, at * 2
(E.D.N.C. Nov. 17, 2005) (holding that because the defen-
dant’s “interest in an ERISA qualified plan does not fit within
(“[r]eading the unambiguous language of Internal Revenue Code section
6334(c) with the mandate contained in section 1144(d) of ERISA, Shan-
baum’s argument that the IRS levy authority yields to the later enacted
non-alienation provision is without merit”); United States v. Sawaf, 74
F.3d 119, 123-24 (6th Cir. 1996) (upholding the treasury regulation that
authorizes the IRS to levy on the benefits of an ERISA-governed plan and
applying that regulation to uphold the IRS’s collection against such bene-
fits); and Anderson v. United States, 149 B.R. 591, 595 (9th Cir. BAP
1992) (upholding a tax lien against benefits from an ERISA-governed
plan).
6
The broad social policies may be seen in the language in Senate Report
104-179 which notes that the legislation was needed “to ensure that the
loss to crime victims is recognized, and that they receive the restitution
that they are due,” and so that “the offender realizes the damage caused
by the offense and pays the debt owed to the victim as well as to society.”
S. REP. NO. 104-179, at 12 (1995), as reprinted in 1996 U.S.C.C.A.N. 924,
925.
3184 UNITED STATES v. NOVAK
any exceptions listed in § 3613(a), ERISA is not a bar to gar-
nishment”); United States v. James, 312 F. Supp. 2d 802, 805
(E.D. Va. 2004) (“Because defendant’s interest in an ERISA
qualified plan does not fit within any of the exceptions listed
in § 3613(a), it follows that ERISA is no bar to garnishment
of a qualified pension plan to collect a criminal restitution
order.”); United States v. Tyson, 242 F. Supp. 2d 469, 474
(E.D. Mich. 2003) (“[T]his Court holds that 18 U.S.C. § 3613
is an express statutory exception to the anti-alienation provi-
sion of ERISA[.]”); United States v. Sowada, No. 03-240,
2003, WL 22902613, at *2 (E.D. La. Dec. 9, 2003) (holding
that “the United States can garnish ERISA funds for satisfac-
tion of criminal fines and penalties,” and observing that to
“hold otherwise would give convicted criminal defendants
greater rights than those of citizens who owe a tax debt to the
government.”); United States v. Rice, 196 F. Supp. 2d 1196,
1202 (N.D. Okla. 2002) (“With the passage of 18 U.S.C.
§ 3613, Congress created an exception to ERISA’s anti-
alienation provision by subjecting all of a criminal defen-
dant’s property to execution for the collection of a criminal
fine.”).
III
Finally, our decision is not inconsistent with our opinion in
Jackson. There, the district court, without reference to any
statute, had ordered Jackson to use benefits from his ERISA
pension plan to pay a criminal restitution order. 229 F.3d at
1224. On appeal, Jackson for the first time raised ERISA’s
anti-alienation provision as a defense. Id. at 1225. We found
that there was no equitable exception to the anti-alienation
provision, and accordingly held that it was plain error to order
Jackson to draw out his ERISA plan benefits. Id.
Our determination in Jackson that there was no applicable
equitable exception to ERISA’s anti-alienation provision was
an accurate reading of Guidry, insofar as equitable principles
apply generally to common law or statutory spendthrift trusts
UNITED STATES v. NOVAK 3185
and their equivalents. There, however, neither party called the
district court’s, or this court’s, attention to the specific provi-
sions of the MVRA which apply to this case. Congress, in
enacting the MVRA post-Guidry, and in providing for the
enforcement of restitution orders pursuant to 18 U.S.C.
§ 3613, created a statutory exception to ERISA’s anti-
alienation provision. Accordingly, although Jackson is part of
the background against which we review the intersection of
the MVRA and ERISA, that case does not require us to ignore
the clearly expressed Congressional choice to give the MVRA
the same standing the IRS has when it gathers up assets to sat-
isfy internal revenue demands.
IV
[6] The Supreme Court in Guidry noted that an anti-
alienation provision was based on “the view that the effectua-
tion of certain broad social polices sometimes takes prece-
dence over the desire to do equity between particular parties.”
Guidry, 493 U.S. at 376. It also recognized that it was appro-
priate for Congress to create exceptions to an anti-alienation
provision. Id. We determine that Congress, by requiring the
entry of restitution orders in certain criminal cases (18 U.S.C.
§ 3663A(a)(1)), by making those restitution orders liens in
favor of the United States (18 U.S.C. § 3613(c)), and by
authorizing the enforcement of those orders against all proper-
ties not exempt from the reach of the United States for the
payment of taxes (see 19 U.S.C. § 3613(a)), has created a stat-
utory exemption to ERISA’s anti-alienation provision.
Accordingly, the district court’s order quashing the writ of
garnishment is VACATED and this matter is REMANDED.
B. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent.
3186 UNITED STATES v. NOVAK
The majority holds that the Mandatory Victim Restitution
Act (MVRA), 18 U.S.C. § 3663A, in conjunction with 18
U.S.C. § 3613, constitutes a statutory exception to ERISA’s
anti-alienation provision. However, Guidry v. Sheet Metal
Workers National Pension Fund, 493 U.S. 365 (1990), as well
as our decision in United States v. Jackson, 229 F.3d 1223
(9th Cir. 2000), require Congress to issue a clear statement of
its intent to abrogate ERISA. Neither the MVRA nor 18
U.S.C. § 3613 contains such directive.
Section 206(d) of ERISA provides that benefits under its
pension plans “may not be assigned or alienated.” See 29
U.S.C. § 1056(d)(1). Guidry takes an uncompromising
approach, finding no exceptions to ERISA’s anti-alienation
provision without a clear directive from Congress. “If excep-
tions to this policy are to be made, it is for Congress to under-
take that task.” Guidry, 493 U.S. at 346. Congress — not
courts — determine the exceptions to the statutory bar.1
In Jackson, we reversed a district court decision that
ordered a defendant to pay immediate restitution out of the
proceeds of his undistributed ERISA pension plan. We fol-
lowed Guidry’s unequivocal rejection of any generalized
equitable exception to ERISA’s anti-alienation provision,
holding that no exception to ERISA’s anti-alienation provi-
sion shall lie unless Congress says so.
The few exceptions to this rule are clearly indicated within
the statutory text. For instance, § 104(a) of the Retirement
Equity Act of 1984, see 29 U.S.C. § 1056(d)(3), clearly man-
dates that the anti-alienation provision does not apply to a
1
The Guidry decision honors Congress’ “considered . . . policy choice
. . . to safeguard a stream of income for pensioners . . . even if that deci-
sion prevents others from securing relief for the wrongs done them.” Id.
at 376. And it notes that those social-policy objectives “sometimes take[ ]
precedence over the desire to do equity between particular parties.” Id. at
376.
 UNITED STATES v. NOVAK 3187
qualified domestic relations order. See Guidry, 493 U.S. at
376 & n.18. ERISA contains an explicit, narrow exception to
the anti alienation provision in cases of crimes against the
pension plan itself. See 29 U.S.C. § 1056(d)(4)(A)(1) (noting
that the anti-alienation provision in § 1056(d)(1) “shall not
apply . . . if . . . the order or requirement to pay arises . . .
under a judgment of conviction for a crime involving such
plan . . . .”); see also Jackson, 229 F.3d at 1225.
The majority holds that statutory amendments enacted after
Guidry but prior to Jackson constitute an exception to the
Guidry principle. First, the MVRA requires district courts to
order restitution for victims in cases involving loss of prop-
erty. 18 U.S.C. § 3663A(a)(1). Second, under 18 U.S.C.
§ 3613(a), the “United States may enforce a judgment impos-
ing a fine in accordance with the practices and procedures for
the enforcement of a civil judgment under Federal law or
State law.” The provision takes effect “[n]otwithstanding any
other Federal law,” id., and “all provisions of this section are
available to the United States for the enforcement of an order
of restitution.” Id. at § (f).
This statutory scheme does not evidence a clear statement
to abrogate ERISA’s anti-alienation provision.2 Although the
statutory text does mandate restitution, it lacks any express
statement (as it does for Social Security, see 18 U.S.C.
§ 3613(a)) that restitution owed to victims can be collected
from ERISA pensions.3 And, as noted previously, there is
nothing within ERISA calling for an exception for orders of
2
Neither does the legislative history of the MVRA support the majori-
ty’s analysis. Although Congress recognized the importance of compen-
sating victims for their losses, the history contains no mention of ERISA
or a desire to undermine the anti-alienation provision or the Supreme
Court’s holding in Guidry.
3
The majority notes that § 3613 contains no exception for ERISA pen-
sion plans. However, the provision does not explicitly include it, either (as
in the case of Social Security). It falls short of Guidry’s requirement of an
explicit statement abrogating the anti-alienation provision.
3188 UNITED STATES v. NOVAK
restitution. Without an express directive in the restitution stat-
ute to seize ERISA pensions or a specific carve-out within
ERISA’s anti-alienation provision, we should not create one
through judicial fiat.
The MVRA determines a certain kind of penalty the gov-
ernment can enforce, but it does not resolve “the narrow ques-
tion whether that judgment may be collected through a
particular means — a [restitution order] placed on the pen-
sion.” Guidry, 493 U.S. at 376 (emphasis added). To create
such an exception without clear intent is “especially problem-
atic in the context of an antigarnishment provision. Such a
provision acts, by definition, to hinder the collection of a law-
ful debt.” Id.
As the Supreme Court noted in Guidry, “[i]t is an elemen-
tary tenet of statutory construction that ‘[w]here there is no
clear intention otherwise, a specific statute will not be con-
trolled or nullified by a general one.’ ” Id. at 375 (citing Mor-
ton v. Mancari, 417 U.S. 535, 550-551 (1974)). Thus, unless
and until Congress amends either the ERISA statute to explic-
itly provide an exception for restitution orders or the restitu-
tion statute to explicitly permit the seizure of ERISA pension
assets, the general restitution statute cannot trump ERISA’s
more specific anti-alienation provision.
The majority cites a handful of out-of-circuit precedents
supporting its conclusion that § 3613 constitutes an exception
to the anti-alienation provision. But interpretations of courts
in sister jurisdictions are not controlling, especially where, as
here, Jackson dictates the contrary outcome. See United States
v. Martinez, 967 F.2d 1343, 1347 (9th Cir. 1992) (“we are
obliged to follow the law of our circuit over inconsistent law
from other circuits”). Unless and until we review that decision
en banc, it remains good law, see United States v. Rodriguez-
Lara, 421 F.3d 932, 943 (9th Cir. 2005), and the majority is
obligated to apply it.
UNITED STATES v. NOVAK 3189
Our opinion in Jackson, decided after codification of the
MVRA, cannot so easily be brushed aside. Jackson clearly
holds that undistributed ERISA funds cannot be used to make
restitution payments unless, as per ERISA, the underlying
crime involved the particular ERISA plan in question.
The majority sidesteps Guidry’s requirement of a clear con-
gressional statement to carve out exceptions to ERISA’s anti-
alienation provision and sets up irreconcilable conflict with
Jackson. I cannot support such an outcome and therefore dis-
sent from the majority’s holding.