     Case: 09-20163     Document: 00511063576          Page: 1    Date Filed: 03/26/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 26, 2010

                                     No. 09-20163                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

GRATINIANO TOVAR-VALENCIA, also known as Carlos Alberto Ramirez-
Hurtado, also known as Daniel Gonzalez Velazquez, also known as Grati,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:97-CR-168-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Gratiniano Tovar-Valencia, federal prisoner #19844-034, appeals the
district court’s dismissal without prejudice of his 18 U.S.C. § 3572(d)(3) motion
for modification of fine. For the following reasons, we AFFIRM the district
court’s dismissal.




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                         No. 09-20163

                             FACTS AND PROCEEDINGS
      In 1998, Tovar-Valencia pleaded guilty to conspiracy to possess with intent
to distribute cocaine and conspiracy to commit money laundering. The district
court sentenced him to life imprisonment on the drug charge and to a concurrent
240-month term on the money laundering charge. The court also imposed a fine
of $25,000, to be paid “in full immediately.” Tovar-Valencia began paying his
fine in installments under the Federal Bureau of Prisons’s Inmate Financial
Responsibility Program (“IFRP”).
      This court dismissed Tovar-Valencia’s direct appeal as frivolous after
granting his counsel’s Anders motion.1 The district court dismissed Tovar-
Valencia’s first 28 U.S.C. § 2255 motion for lack of merit; this court denied a
COA and later denied leave to file a second or successive § 2255 motion.
      The instant appeal is the latest in a series of challenges Tovar-Valencia
has mounted against his fine and the manner in which he is paying it. His
motion asked the district court to remit or modify the fine pursuant to 18 U.S.C.
§ 3572(d)(3).2 In the motion, Tovar-Valencia contests the Bureau of Prisons’s use
of the IFRP to facilitate the payment of fines that are due “in full immediately.”
He argues that, pursuant to 18 U.S.C. § 3612(e), his failure to pay the fine
immediately put him in default, which should have triggered the collection


      1
          Anders v. California, 386 U.S. 738 (1967).
      2
          Section 3572(d)(3) provides as follows:
            A judgment for a fine which permits payments in installments shall
            include a requirement that the defendant will notify the court of any
            material change in the defendant’s economic circumstances that might
            affect the defendant’s ability to pay the fine. Upon receipt of such notice
            the court may, on its own motion or the motion of any party, adjust the
            payment schedule, or require immediate payment in full, as the interests
            of justice require.

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                                  No. 09-20163

procedures outlined in 18 U.S.C. §§ 3612, 3613, and 3613A. The government’s
failure to adhere to these procedures, he asserts, violates the Fifth Amendment
and forfeits its ability to collect the balance of the fine. Claiming that new
economic circumstances—including his alleged dismissal from a prison job due
to his immigration status—affect his ability to continue paying his fine, Tovar-
Valencia asked the district court to set a new payment schedule or remit the
remainder of the fine. He also asserted that he may attempt to recover the
amount he has already paid the government as illegally collected.
      The district court dismissed Tovar-Valencia’s motion, without prejudice,
for lack of jurisdiction. It reasoned that the motion was a collateral attack on
the criminal judgment and should be treated as another successive § 2255
petition. The court denied Tovar-Valencia’s Rule 59 motion to alter or amend
the judgment, and this appeal followed.
                                 DISCUSSION
      Tovar-Valencia’s fine is not of the type for which § 3572(d)(3) authorizes
relief. He does not challenge a “judgment for a fine which permits payments in
installments” as required under § 3572(d)(3)—the district court did not make
Tovar-Valencia’s fine payable in installments. See, e.g., United States v. Wynn,
328 F. App’x 826, 828 (3d Cir. 2009) (unpublished).         His motion is more
accurately characterized as a challenge to the validity of his IFRP payment
plan—in other words, a challenge to the manner in which his sentence is being
executed, rather than a “claim[] relating to unlawful custody” cognizable under
28 U.S.C. § 2255. See United States v. Segler, 37 F.3d 1131, 1137 (5th Cir. 1994).
In Segler, this court explained that § 2255 was reserved for claims relating to




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                                  No. 09-20163

unlawful custody and could not serve as the vehicle to challenge the imposition
of a fine. Id. at 1137-38.
      A properly stated claim of the sort Tovar-Valencia seeks to make requires
exhaustion of administrative remedies and must then be asserted, pursuant to
28 U.S.C. § 2241, in the district court in the district where he is incarcerated.
See United States v. Diggs, 578 F.3d 318, 319-20 (5th Cir. 2009). In Diggs, a
restitution case raising an analogous issue, we stressed that “[p]risoners cannot
use [18 U.S.C.] § 3664(k)”—the equivalent of § 3572(d)(3) in the restitution
context—“as a vehicle for a court not in the district of incarceration to modify or
suspend IFRP payments.” Id. at 320.
      This court can affirm the judgment of the district court on any basis
supported by the record. Bickford v. Int’l Speedway Corp., 654 F.2d 1028, 1031
(5th Cir. 1981). Although the district court incorrectly premised its dismissal
on the bar against second or successive § 2255 petitions, that dismissal was
nonetheless the proper result.
                                 CONCLUSION
      The district court’s dismissal without prejudice is AFFIRMED.




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