                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        February 28, 2007
                             FO R TH E TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                           Clerk of Court



    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                     No. 05-5174
                                                 (D.C. Nos. 05-CV-373-HDC and
    W ILLIA M R . SA TTER FIELD ,                       04-CR-123-HDC)
                                                           (N.D. Okla.)
                Defendant-Appellant.



                              OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, O’BRIEN, and M cCO NNELL, Circuit Judges.




         Appellant W illiam R . Satterfield appeals from the district court’s denial of

his M otion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255.

M r. Satterfield pled guilty in the underlying case to two counts of odometer

tampering and one count of conspiracy and signed a plea agreement that included

a waiver of his right to appeal, including his right to collaterally attack his


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
conviction and sentence. 1 M r. Satterfield did not file a direct appeal but filed his

§ 2255 motion in which he alleged (1) that the waiver of appeal rights signed in

connection with his plea agreement was not entered into knowingly or voluntarily

as a result of ineffective assistance of counsel, (2) that the district court adopted

the pre-sentence report without an adequate factual basis to do so, (3) that the

restitution order was improper in that it violated the Ex Post Facto Clause of the

Federal Constitution, and (4) the restitution amount miscalculated the amount of

loss and exceeded the actual value of the vehicles that he altered.

      The district court addressed the restitution issues first and held that because

the language of 28 U.S.C. § 2255 only allows the court to grant relief to federal

prisoners claiming the right to be released, challenges to restitution orders are not

cognizable, even when coupled with a challenge to a sentence of imprisonment.

The district court therefore held that it had no subject matter jurisdiction over

those issues. As to the remaining issues, the district court held that they were

precluded by the waiver of appeal in the plea agreement and that M r. Satterfield

could not show ineffective assistance of counsel such that the plea agreement

should be set aside.




1
      M r. Satterfield admitted in his plea agreement that he “knowingly and
willfully participated in a conspiracy with other individuals to reset, alter, or
disconnect and replace odometers in more than 424 used motor vehicles” most of
which “were ‘high end’ vehicles.” R., Doc. 9 at 8.

                                          -2-
      M r. Satterfield filed an application for a certificate of appealability (COA )

with this court seeking to appeal all of the issues raised before the district court.

This court previously granted a CO A on the question of whether a movant may

challenge the restitution portion of his sentence in a motion filed pursuant to

28 U.S.C. § 2255. See M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (stating

that until a COA issues under 28 U.S.C. § 2253(c) “federal courts of appeal lack

jurisdiction to rule on the merits of appeals” of § 2255 applicants). W e now

exercise our jurisdiction regarding that question, see 28 U.S.C. §§ 1291, 2255,

and affirm.

      Under 28 U.S.C. § 2255:

      [a] prisoner in custody under sentence of a court established by Act
      of Congress claiming the right to be released upon the ground that
      the sentence was imposed in violation of the Constitution or laws of
      the United States . . . or that the sentence was in excess of the
      maximum authorized by law . . . may move the court which imposed
      the sentence to vacate, set aside or correct the sentence.

M r. Satterfield cannot challenge the amount of restitution awarded by way of a

§ 2255 motion, however, because he is not “claiming the right to be released”

from custody based on his claim. See, e.g., United States v. Bernard, 351 F.3d

360, 361 (8th Cir. 2003) (citing cases).




                                           -3-
      Consequently, the district court’s dismissal of this claim for lack of subject

matter jurisdiction is AFFIRM ED. As to the remaining arguments raised by

M r. Satterfield in his application for COA, we agree with the reasoning set forth

by the district court in denying those arguments; hold that he has failed to make

“a substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2); and DENY his application for COA. M r. Satterfield’s appeal is

therefore D ISM ISSED .


                                                    Entered for the Court



                                                    Terrence L. O’Brien
                                                    Circuit Judge




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