Sentencing – restitution — CCPA

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United States Court of Appeals

Criminal

Sentencing – restitution — CCPA

The Consumer Credit Protection Act prohibits the government from taking more than 25% of a defendant’s distributions from retirement savings plans for restitution.

“Where a pension or retirement program authorizes payments, the payments are made ‘pursuant to’ the fund and therefore constitute ‘earnings.’ Id. Hence, the government cannot garnish more than 25% of pension distributions. The statutory language refers to periodic payments, which describe the $2,000 and $3,000 annual payments from Lee’s 401(k) and defined benefit pension plan. Although the statutory definition of ‘earnings’ cover compensation paid or payable for personal services regardless of whether they are labeled as wages, salary, bonus or otherwise, the plain language also embraces ‘periodic payments made pursuant to a pension or retirement program.’ 15 U.S.C. § 1672(a). Black’s Law Dictionary defines the term ‘pursuant to’ as ‘in compliance with; in accordance with; under [or] . . . as authorized by . . . [or] in carrying out.’ Black’s Law Dictionary 1356 (9th ed. 2009). Given the unambiguous language of the statute, periodic payments from a pension or retirement savings plan made in accordance with its terms would be made ‘pursuant to’ the pension or retirement plan and therefore be subject to the 25% limitation of the CCPA.”

Vacated and Remanded.

10-3117 U.S. v. Lee

Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Clevert, J.