FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-30194 Plaintiff-Appellee, D.C. No. v. 3:98-cr-05168-RJB-1 LONNIE EUGENE LILLARD, Defendant-Appellant. OPINION Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding Argued and Submitted May 14, 2019 Seattle, Washington Filed August 28, 2019 Before: Michael Daly Hawkins, William A. Fletcher, and Mark J. Bennett, Circuit Judges. Opinion by Judge W. Fletcher; Dissent by Judge Bennett 2 UNITED STATES V. LILLARD SUMMARY* Criminal Law The panel reversed the district court’s order granting the government’s motion pursuant to § 3664(n) of the Mandatory Victims Restitution Act to seize funds in the defendant’s inmate trust account to be applied to the defendant’s outstanding restitution debt related to a prior conviction. The defendant received the funds in his inmate trust account while he was in pretrial detention awaiting trial on federal bank fraud charges. Section 3664(n) provides that if a person “receives substantial resources . . . during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed.” The panel held that the change in the defendant’s custodial sentence – he pled guilty and was sentenced to 196 months imprisonment – does not render the case moot; and that de novo rather than plain error review is appropriate. The panel held that the language and statutory context favor the view that the phrase “period of incarceration” in § 3664(n) does not include pretrial detention, and that the rule of lenity resolves any ambiguity in the defendant’s favor. Dissenting, Judge Bennett wrote that pretrial detention qualifies as “a period of incarceration” under § 3664(n), and * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. LILLARD 3 because the statutory language is unambiguous, the rule of lenity does not apply. COUNSEL Lonnie Eugene Lillard, Sheridan, Oregon, pro se Defendant- Appellant. Gregory T. Murphy (argued), Assistant Federal Public Defender, Office of the Federal Public Defender, Seattle, Washington, for Amicus Curiae Office of the Federal Public Defender. Kyle A. Forsyth (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney’s Office, Seattle, Washington; for Plaintiff- Appellee. OPINION W. FLETCHER, Circuit Judge: Lonnie Lillard received $6,671.81 in his inmate trust account while in pretrial detention awaiting trial on federal bank fraud charges. When the United States Attorney’s Office learned of his receipt of the $6,671.81, it sought to apply the funds toward Lillard’s outstanding restitution debt from an unrelated 1998 conviction. The United States moved to seize Lillard’s funds pursuant to § 3664(n) of the Mandatory Victims Restitution Act (“MVRA”), codified in relevant part at 18 U.S.C. §§ 3613A, 3663A, 3664. Section 3664(n) of the MVRA provides that if a person “receives 4 UNITED STATES V. LILLARD substantial resources . . . during a period of incarceration, such ...
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