                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUN 22 1998
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

    v.                                                No. 97-7044
                                                  (D.C. No. 88-CR-33-S)
    DAN L. STEFANOFF,                                  (E.D. Okla.)

              Defendant-Appellant

    _______________________________

    STEFANOFF ELECTRIC
    CORPORATION, 123 North Birch,
    Jenks, OK 74037

              Garnishee.


                           ORDER AND JUDGMENT           *




Before TACHA , LOGAN , and LUCERO , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       On November 17, 1988, defendant pleaded guilty to three banking-related

felonies in federal court.   1
                                 Imposition of a sentence on each count was suspended,

and defendant was put on probation for five years and fined $250,000. Defendant

was ordered to pay the fine in five annual installments of $50,000, plus interest,

with the final payment due on or before October 1, 1993. By the end of August

1993, however, defendant had paid only $49,000 of the fine. In early September

1993, the government began using garnishment procedures to collect the

outstanding fine.

       In April 1994, after defendant had served his probationary period, he filed a

pleading, entitled “Supplemental Memorandum as Relates to Garnishment Issues

and Whether Defendant Stefanoff is Still Indebted to the United States of

America,” in which he argued that he had no further liability for the fine.

Defendant advanced two alternative claims in his memorandum. First, he

contended that the sentencing court unlawfully imposed a fine of $250,000.

Defendant argued that the court had no authority to impose a fine greater than

$25,000, which defendant had since paid. Alternatively, defendant argued that

even if the $250,000 fine was lawfully imposed, he was discharged from any


1
      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) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.


                                             -2-
continuing liability for the fine on November 17, 1993, when his probation ended.

On April 3, 1997, the district court entered an order denying defendant relief.

The court concluded that defendant had been sentenced properly and that the

expiration of his probationary period did not exonerate defendant from liability

for the unpaid fine. Defendant now appeals.

      As an initial matter, we must determine whether we have jurisdiction to

hear this appeal. Defendant filed his notice of appeal from the April 1997 order

before the sixty days required in a civil case involving the government under

Fed. R. App. P. 4(a), but after the ten days required in a criminal case under

Fed. R. App. P. 4(b). The government argues that this is a criminal case and,

therefore, that the notice of appeal was untimely. Defendant, in turn, argues that

because he raised his claims as a defense to the government’s continuing

garnishment activities, the action is inherently civil.

      Although defendant raised his claims in the process of defending against

the government’s collection efforts, his claims did not attack the garnishment

procedures being used by the government. Instead, defendant’s claims attacked

his conviction and sentence. While we might otherwise construe defendant’s

collateral attack as a motion to vacate, set aside, or correct a sentence under

28 U.S.C. § 2255, we note that he did not assert the claims at issue until after his

probationary period had expired. Therefore, we doubt that defendant met the “in


                                          -3-
custody” requirement of § 2255 at the time he asserted his claims in the district

court. See, e.g. , United States v. Michaud , 901 F.2d 5, 6-7 (1st Cir. 1990)

(holding that defendant who had served confinement portion of sentence, but

remained obligated to pay $60,000 fine, was not “in custody” for § 2255

purposes). Nonetheless, a criminal defendant who seeks to collaterally attack his

conviction and sentence, but who is no longer in custody, is not without remedy:

he may file a petition for writ of error coram nobis under the All Writs Act,

28 U.S.C. § 1651(a).   See United States v. Morgan , 346 U.S. 502, 511 (1954)

(holding that district court has power to grant writ of error coram nobis

challenging criminal, as opposed to civil, judgment);   United States v. Mischler ,

787 F.2d 240, 241 & n.1 (7th Cir. 1986) (approving use of writ of error coram

nobis to challenge restitution order). Therefore, we will construe defendant’s

“supplemental memorandum” as a petition for a writ of error coram nobis.

      We have held that the time for appealing the denial of a writ of error coram

nobis is the same as that for appealing the denial of a § 2255 motion: sixty days.

See United States v. Pinto , 1 F.3d 1069, 1070 (10th Cir. 1993). Therefore,

defendant’s notice of appeal was timely filed, and we have jurisdiction over the

appeal. We turn then to the merits of defendant’s appeal.

             The writ of coram nobis is an extraordinary remedy available
      to a petitioner no longer in custody who seeks to vacate his
      conviction in circumstances where the petitioner can demonstrate
      that he is suffering civil disabilities as a consequence of the criminal

                                           -4-
      convictions and that the challenged error is of sufficient magnitude
      to justify the extraordinary relief.

United States v. Castro , 26 F.3d 557, 559 (5th Cir. 1994) (quotations and citation

omitted). “[T]he burden is on the petitioner to demonstrate that the asserted error

is jurisdictional or constitutional and results in a complete miscarriage of justice.”

Klein v. United States , 880 F.2d 250, 253 (10th Cir. 1989).

      Defendant first claims that the sentencing court erroneously imposed a fine

greater than $25,000. The district court sentenced defendant under the alternative

fines provisions of the Criminal Fine Enforcement Act of 1984 (“CFEA”), Pub. L.

No. 98-596, 1984 U.S.C.C.A.N. (98 Stat.) 3134, 3137 (formerly codified at 18

U.S.C. § 3623), which permitted imposition of a fine up to $250,000 for a felony

conviction. Defendant did not appeal his sentence. However, he now argues that

at the time he was sentenced, the alternative fines provisions of 18 U.S.C. § 3623

had been repealed by the Sentencing Reform Act of 1984 (“SRA”), Pub. L. No.

98-473, ch. 2, sec. 212(a)(2), 1984 U.S.C.C.A.N. (98 Stat.) 1987, 1987, which

was enacted on October 12, 1984 as part of the Comprehensive Crime Control Act

of 1984. Therefore, defendant contends, the court had authority to impose a fine

no greater than $25,000, the aggregate amount of fines provided by each of the

specific criminal offense statutes to which defendant pleaded guilty.

      At the outset, we note that defendant could have raised this challenge to his

sentence on direct appeal, but failed to do so. “[C]oram nobis . . . (like habeas

                                          -5-
corpus) cannot be used to reach issues that could have been raised by direct

appeal. . . .” Barnickel v. United States , 113 F.3d 704, 706 (7th Cir. 1997). In

any event, defendant’s argument is without merit. The CFEA, which was enacted

on October 30, 1984, provided that the alternative fines provisions would apply to

offenses committed after December 31, 1984. Pub. L. No. 98-596, sec. 10, 1984

U.S.C.C.A.N. (98 Stat.) 3138. The SRA, as amended by the Sentencing Reform

Amendments Act of 1985, Pub. L. No. 99-217, sec.4, 1985 U.S.C.C.A.N. (99

Stat.) 1728, 1728, and the Sentencing Act of 1987, Pub. L. No. 100-182, sec. 2,

1987 U.S.C.C.A.N. (101 Stat.) 1266, 1266, applies only to offenses committed

after November 1, 1987.   See, e.g. , United States v. Sanchez , 907 F.2d 127, 128

(10th Cir. 1990). Because defendant’s offenses were committed between May

1985 and May 1986, the district court properly sentenced defendant under the

alternative fines provisions of the CFEA.

      We turn to defendant’s claim that, if he was properly sentenced under the

CFEA, then by that act’s own terms, his liability for the fine ended upon his

successful completion of probation. Section 12(a)(1)(2) of the CFEA amended

the provisions of 18 U.S.C. § 3651 concerning probation, by striking out the

following paragraph, which had been added by the SRA:     2
                                                              “‘If the court has

imposed and ordered execution of a fine and placed the defendant on probation,


2
      See Pub. L. No. 98-473, sec. 238(b), 1984 U.S.C.C.A.N. (98 Stat.) 2038.

                                         -6-
payment of the fine or adherence to the court-established installment shall be a

condition of the probation.’” Pub. L. No. 98-596, 1984 U.S.C.C.A.N. (98 Stat.)

3139. Section 12(a)(1)(3) of the CFEA further amended § 3651 by striking out

the last paragraph, which had also been amended by the SRA,         3
                                                                        and inserting in

lieu thereof the following: “The defendant’s liability for any fine or other

punishment imposed as to which probation is granted, shall be fully discharged by

the fulfillment of the terms and conditions of probation.” Pub. L. No. 98-596,

1984 U.S.C.C.A.N. (98 Stat.) 3139. Based on the amendment contained in CFEA

section 12(a)(3), defendant argues that his successful completion of his

probationary period fully discharged his liability for the fine.

       As the district court pointed out, however, section 4 of the CFEA made

further amendments to 18 U.S.C. § 3651. Most significantly, section 4 altered the

language in the final paragraph of § 3651 that had been added by CFEA section

12(a)(1)(3), by striking out the words “‘fine or other punishment’” and inserting

in lieu thereof the words “‘punishment (other than a fine).’”   4
                                                                    Pub. L. No. 98-596,

1984 U.S.C.C.A.N. (98 Stat.) 3136. CFEA section 4 then added the following

language to the final paragraph:

3
       See Pub. L. No. 98-473, sec. 238(c), 1984 U.S.C.C.A.N. (98 Stat.) 2038
4
      Thus, the first sentence of the final paragraph of § 3651 would read: “The
defendant’s liability for any punishment (other than a fine) imposed as to which
probation is granted, shall be fully discharged by the fulfillment of the terms and
conditions of probation.”

                                            -7-
      “If at the end of the period of probation, the defendant has not
      complied with a condition of probation, the court may nevertheless
      terminate proceedings against the defendant, but no such termination
      shall affect the defendant’s obligation to pay a fine imposed or made
      a condition of probation, and such fine shall be collected in the
      manner provided in section 3565 of this title.”

Id.

      Defendant argues that the amendments to § 3651 made by CFEA sections 4

and 12 created two categories of criminal offenders: those who successfully

complete their probationary period and, therefore, are fully discharged from any

further liability on their fines, pursuant to section 12; and those who do not

comply with all the conditions of their probation and, therefore, are not

discharged from payment of the fine, pursuant to section 4. Defendant claims he

is entitled to the full discharge granted by section 12.

      Defendant’s argument is flawed in two respects. First, the amendments to

§ 1365 made by CFEA sections 4 and 12 were not intended to coexist. The

amendments made by section 12 became effective as of October 12, 1984, the day

on which Congress enacted the SRA.      See Pub. L. No. 98-596, sec. 12(b),

1984 U.S.C.C.A.N. (98 Stat.) 3140 (referring to H. J. Res. 648, 98th Cong.,

enacted as Pub. L. No. 98-473, 1984 U.S.C.C.A.N. (98 Stat.) 1837). The

amendments made by CFEA section 4, however, did not become effective until

December 31, 1984.    See Pub. L. No. 98-596, sec. 10, 1984 U.S.C.C.A.N. (98

Stat.) 3138. Thus, Congress first reversed some of the changes to § 3651 made by

                                          -8-
the SRA, through CFEA section 12, and then amended the restored version of

§ 3651, through CFEA section 4.     Cf. United States v. Atlantic Disposal

Serv.,Inc. , 887 F.2d 1208, 1210-11 (3d Cir. 1989) (tracking relationship between

provisions of CFEA and SRA).

      Second, defendant’s argument ignores the first change to § 3651 made by

CFEA section 4, which was to provide that a defendant’s fulfillment of the terms

and conditions of probation would discharge his liability for any punishment    other

than a fine . A proper reading of the CFEA and SRA reflects that, if a defendant

committed his offense after December 31, 1984, but before November 1, 1987, his

successful completion of probation would     not discharge his continuing liability

for any unpaid fine imposed. Therefore, the district court correctly determined




                                           -9-
that defendant was still liable for the full amount of the unpaid fine at issue here.

      The judgment is AFFIRMED.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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