935 F.3d 827

BENNETT, Circuit Judge, dissenting:
Pretrial detention qualifies as "a period of incarceration" under 18 U.S.C. § 3664(n), and because the statutory language is unambiguous, the rule of lenity does not apply. Thus, I would affirm the district court's order directing that the funds at issue be used to pay Lonnie Lillard's outstanding restitution obligations.
I.
The issue before us is one of statutory interpretation-whether pretrial detention qualifies as "a period of incarceration" under § 3664(n).
Because "[t]he preeminent canon of statutory interpretation requires us to presume that the legislature says in a statute what it means and means in a statute what it says there[,] ... our inquiry begins with the statutory text, and ends there as well if the text is unambiguous." BedRoc Ltd., LLC v. United States , 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (internal brackets, quotation marks, and citation omitted). "It is well established that 'when the statute's language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms.' " Lamie v. U.S. Tr. , 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A. , 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) ). And we typically give terms their ordinary meanings if they are not defined in the statute. See FCC v. AT & T Inc. , 562 U.S. 397, 403, 131 S.Ct. 1177, 179 L.Ed.2d 132 (2011).
Here, the statute does not define "a period of incarceration." But since 1996 when § 3664(n) was enacted as part of the Mandatory Victims Restitution Act (MVRA), "incarcerate" has meant: "To shut up in prison; to put in confinement; to imprison." 7 Oxford English Dictionary 783 (2d ed. 1989); see also Black's Law Dictionary 878 (10th ed. 2014) (defining "incarceration" as "[t]he act or process of confining someone; imprisonment"). These broad definitions encompass pretrial detention.
A recent Supreme Court decision supports that "incarceration" includes pretrial detention. In Mont v. United States , --- U.S. ----, 139 S. Ct. 1826, 204 L.Ed.2d 94 (2019), the Court found that the broad definitions of "imprison," one of which was "to incarcerate," encompass pretrial detention. Id. at 1832. Thus, it follows that incarceration, being synonymous with imprisonment, also includes pretrial detention. The Court in Mont also observed that "[i]f Congress intended a narrower interpretation, it could have easily used narrower language," and that the Court "cannot override Congress' choice to employ [a] more capacious phrase." Id. at 1832-33. The same is true here. If Congress intended for § 3664(n) to apply only to post-conviction periods of detention, it could have easily done so by, for example, adding the phrase "after a conviction" or "following a conviction" immediately after the phrase "during a period of incarceration." But Congress chose not to do so.
The context in which "incarceration" is used also shows that Congress intended § 3664(n) to be construed broadly. The subsection reads: "If a person obligated to provide restitution ... receives substantial resources from any source ... during a period of incarceration, such person shall be required to apply the value of such resources to any restitution ... still owed." 18 U.S.C. § 3664(n) (emphasis added). The broad language used throughout the subsection reinforces that Congress intended this subsection to apply broadly, and no language in the statute suggests that Congress intended to limit it in the way that the majority believes it should be limited.
Finally, giving the term "incarceration" its ordinary meaning does not lead to absurd results. A person in pretrial detention does not need financial resources to support his subsistence needs. Thus, when that person "receives substantial resources ... during a period of incarceration," § 3664(n), those excess resources should be applied toward his existing restitution obligations. This is reasonable and consistent with the purpose of the MVRA, "to ensure that victims of crime receive full restitution." Dolan v. United States , 560 U.S. 605, 612, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010).
Because § 3664(n)'s plain language encompasses periods of pretrial detention, and such an interpretation does not remotely lead to absurdity, I would enforce the statute as Congress wrote it and hold that it applies to periods of pretrial detention.
II.
The majority errs by failing to give "incarceration" its full and fair meaning. See Scalia & Garner, Reading Law: The Interpretation of Legal Texts , 101 (2012) ("Without some indication to the contrary, general words ... are to be accorded their full and fair scope. They are not to be arbitrarily limited."). Instead, the majority holds that the statute is ambiguous because the term "incarceration" could be construed more narrowly. But were that reasoning valid, then a statute would always be ambiguous whenever Congress used a broad term. That a statute contains a broad term cannot automatically create ambiguity. See Arizona v. Tohono O'odham Nation , 818 F.3d 549, 557 (9th Cir. 2016) ("[A] word or phrase is not ambiguous just because it has a broad general meaning under the [general words are to be understood in a general sense] canon of statutory construction.").
The majority also does not identify any absurdity that would result from giving "incarceration" its full and fair meaning. The majority suggests that applying § 3664(n) to periods of pretrial detention might be unfair in some cases. But Congress made that policy decision, and the fact that the statute's application might lead to seemingly unfair results cannot override the statute's plain meaning-the policy choice is for the legislative branch of government, not the judicial. See Guido v. Mount Lemmon Fire Dist. , 859 F.3d 1168, 1175 (9th Cir. 2017) ("[I]t is not our role to choose what we think is the best policy outcome and to override the plain meaning of a statute[.]").
Ignoring the plain language of the statute, the majority holds that the structure of § 3664 shows that "incarceration" does not encompass pretrial detention. But the majority's analysis is unconvincing because, logically, any statute governing enforcing a restitution order necessarily applies only after a conviction. What the statute's structure does not tell us is whether Congress intended § 3664(n) to apply to persons in pretrial detention with existing restitution orders (though, as noted, the statute's unambiguous text does tell us). Thus, I do not believe that the statute's structure sheds any light on whether Congress intended "incarceration" to be limited in the way that the majority limits it (again, a limitation that Congress could have chosen to actually incorporate in the statute's text).
And I believe it is simply wrong to rely on the structure of a statute, while ignoring its express language. "Reliance on context and structure in statutory interpretation is a 'subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.' " King v. Burwell , --- U.S. ----, 135 S. Ct. 2480, 2495-96, 192 L.Ed.2d 483 (2015) (quoting Palmer v. Massachusetts , 308 U.S. 79, 83, 60 S.Ct. 34, 84 L.Ed. 93 (1939) ). Thus, "[c]ourts should rarely depart from a statute's clear meaning because it risks creating a perception that they are inserting their own policy preferences into a law." Guido , 859 F.3d at 1174.
Because § 3664(n) is not ambiguous, the rule of lenity does not apply. See United States v. Overton , 573 F.3d 679, 693 (9th Cir. 2009) ("Where there is no statutory ambiguity at the outset, 'the rule of lenity simply has no application.' " (quoting Albernaz v. United States , 450 U.S. 333, 343, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) )).
III.
Adhering to the canons of statutory interpretation, I would hold that pretrial detention qualifies as "a period of incarceration" under § 3664(n). The majority reaches the opposite result by erroneously creating an ambiguity that does not exist. Thus, I respectfully dissent.
I agree with the majority that this case is not moot and that de novo review applies.
The majority cites 5 U.S.C. § 8148(b)(1)-(2) to support its argument. There, Congress used explicit language to limit the term "period of incarceration" to post-conviction confinement. Thus, § 8148(b)(1)-(2) supports my view that if Congress wanted to limit § 3664(n) to periods of post-conviction confinement, it knew just how to do so.
I note that the language in § 3664(n) does not require a person to apply all of his resources toward his restitution obligations. It requires only that a person apply "substantial resources" received "during a period of incarceration." 18 U.S.C. § 3664(n).
I do not find Lillard's remaining arguments challenging the district court's order persuasive.

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