                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-7291



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DAVID FITZGERALD LIGHTNER,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:93-cr-00133-RDP)


Submitted:   January 29, 2008           Decided:    February 22, 2008


Before MICHAEL, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


David Fitzgerald Lightner, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            David Fitzgerald Lightner appeals the district court’s

opinion “clarifying” his criminal judgment with respect to the

payment of the fine.         On appeal, Lightner’s sole argument is that

the district court lacked authority to essentially modify his

criminal judgment.       We agree and, accordingly, vacate and remand.

            In 1994, David Fitzgerald Lightner was convicted of one

count of conspiracy to possess with intent to distribute cocaine

base, 21 U.S.C. § 846 (2000), and one count of possession with

intent to distribute cocaine base, 21 U.S.C. § 841(a)(1) (2000).

He was sentenced to life imprisonment.                  The criminal judgment

further provided for a $25,000 fine, to be paid “in installments

according to the schedule of payments as prepared by the Probation

Office.”    This court subsequently held in United States v. Miller,

77 F.3d 71, 77-78 (4th Cir. 1996), that the sentencing court cannot

delegate    the    authority    to    schedule    payment    of   a   fine   to   a

non-judicial officer.

            According to Lightner, an inmate at Bennettsville Federal

Correctional Institution, he was placed on refusal status for

failure to pay the $25,000 fine imposed as part of his May 1994

sentence.         Lightner   states    that,     when   he   appealed    through

administrative remedies, he was removed from refusal status and

placed on temporary exempt status while the warden generated a




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letter   to    the    sentencing   judge       requesting    clarification    on

Lightner’s judgment.

             The district court, based on letters from the U.S.

Attorney’s Office and the Probation Office, responded, noting that

the sentencing judge in Lightner’s case had since retired and was

therefore no longer on the bench.              The district court therefore

directed that the subject letter be treated as the court’s opinion

regarding Lightner’s judgment and commitment.               The district court

stated that “Mr. Lightner should be participating in the Inmate

Financial Responsibility Program (IFRP) to satisfy his financial

obligation.”     The district court noted that it believed “the U.S.

Department of Justice and the U.S. Probation Office concur with

this opinion.”       As a consequence, Lightner was, according to him,

placed back on refusal status for failure to pay the fine.

             Relying on United States v. Jones, 238 F.3d 271 (4th Cir.

2001), Lightner argues on appeal that the district court lacked

authority to essentially modify his criminal judgment.               In Jones,

the district court ordered Jones to pay a fine of $10,000.                    In

Jones’ 1995 criminal judgment, the district court directed the

Bureau of Prisons to establish a payment schedule pursuant to the

IFRP   and    directed   that   upon    Jones’   release    from   custody   the

probation officer would establish, and could modify, a payment

schedule.     238 F.3d at 272.     In light of Miller, the warden of the

correctional institution in which Jones was incarcerated sent a


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letter to the district court concerning the change in law.                    In

response, the district court sua sponte entered an order on October

13, 1999, amending Jones’ criminal judgment order to provide that

the $10,000 fine “shall be due and payable immediately.”                      On

appeal, this court held that the district court lacked authority to

amend Jones’ judgment, noting that the district court had no

authority to act based solely on a subsequent change in case law,

even   though    it    was   attempting   to    bring   Jones’   sentence     in

compliance with subsequent case law.            Id. at 272-73.

            In Jones, the district court clearly entered an order

amending Jones’ judgment to provide a different payment method than

that ordered in the original judgment.            In this case, the district

court took a less formal approach, stating in its opinion letter

that   it   merely    sought   to    “clarify   the   verbiage   used   in   Mr.

Lightner’s Judgment and Commitment.”            Although intended to clarify

the language of the sentencing court and to enforce the sentencing

court’s original intent, we find that the district court’s opinion

constituted     an    unauthorized    amendment    to   the   judgment.      The

original judgment provides that the fine be paid according to the

schedule of payments prepared by the Probation Office.                    In its

opinion, the district court imposed the requirement that Lightner

participate in the IFRP.         However informal and well-intended the

court’s letter, the practical effect of the clarification was

accomplishing “through the back door” what the district court was


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admonished from doing in Jones.         Based on Jones, we find that the

court was unauthorized to “clarify” the judgment, which essentially

served to amend the judgment.

              Accordingly,   we   vacate   the   district   court’s   opinion

regarding Lightner’s judgment, and to the extent that it replaced

the original judgment, we remand with instructions to reinstate the

original sentence.       We dispense with oral argument because the

facts   and    legal   contentions   are     adequately   presented    in   the

materials     before   the   court   and     argument   would   not   aid   the

decisional process.

                                                        VACATED AND REMANDED




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