                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 13, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 ANDRE LAMONT THURSTON,

               Petitioner - Appellant,                   No. 10-3053
          v.                                             (D. Kansas)
 CLAUDE CHESTER, Warden, USP-                 (D.C. No. 5:09-CV-03028-RDR)
 Leavenworth,

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Andre Lamont Thurston, a federal prisoner appearing pro se, appeals the

dismissal by the United States District Court for the District of Kansas of his

application for relief under 28 U.S.C. § 2241. He also appeals the denial of his

motion for reconsideration. He claims that he will suffer the effects of not

participating in the Federal Bureau of Prisons’ Inmate Financial Responsibility



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
Program (IFRP) because the Bureau has improperly interpreted the regulations

governing the IFRP. The district court rejected his claim and he appeals. We

affirm.

      On July 1, 1996, Mr. Thurston was sentenced to 360 months’

imprisonment, five years’ supervised release, a $50 criminal assessment, $3,000

restitution, and a $17,100 fine for conspiracy to possess with intent to distribute

cocaine base (crack), in violation of 21 U.S.C. § 846. He has paid the assessment

and restitution in full, but has a balance of over $14,000 due on his fine.

      The purpose of the IFRP is to “encourage[] each sentenced inmate to meet

his or her legitimate financial obligations.” 28 C.F.R. § 545.10. Under the

program, prison staff assist an inmate in developing a financial plan to meet those

obligations, and monitor the inmate’s progress under the plan. See id. § 545.11.

An inmate is responsible for maintaining progress in fulfilling the financial

obligations of the plan. See id. § 545.11(b). “Payments may be made from

institution resources or non-institution (community) resources.” 1 Id.

      1
          28 C.F.R. § 545.11(b) reads in its entirety:

      (b) Payment. The inmate is responsible for making satisfactory
      progress in meeting his/her financial responsibility plan and for
      providing documentation of these payments to unit staff. Payments
      may be made from institution resources or non-institution
      (community) resources. In developing an inmate’s financial plan, the
      unit team shall first subtract from the trust fund account the inmate’s
      minimum payment schedule for UNICOR or non–UNICOR work
      assignments, set forth in paragraphs (b)(1) and (b)(2) of this section.
                                                                       (continued...)

                                           -2-
      Mr. Thurston arrived at the United States Penitentiary at Leavenworth,

Kansas, on June 4, 2008. He began with $171.74 in his inmate trust account. On

June 12, 2008, he signed a contract to participate in the IFRP; his plan called for

quarterly payments of $25 to be withdrawn from his account beginning in

September 2008. He had no institution work assignment, and by the time he was

to make his first payment, he had depleted his account balance to $.79. He did

not make his first payment and was placed on refusal status on October 1, 2008.

He filed this suit on January 29, 2009.

      The penalties for not participating in the IFRP include (1) notification to

the Parole Commission of the refusal to participate, (2) ineligibility for furlough,

(3) ineligibility for performance, bonus, or vacation pay, (4) ineligibility for work


      1
       (...continued)
      The unit team shall then exclude from its assessment $75.00 a month
      deposited into the inmate’s trust fund account. This $75.00 is
      excluded to allow the inmate the opportunity to better maintain
      telephone communication under the Inmate Telephone System (ITS).

             (1) Ordinarily, the minimum payment for non-UNICOR and
             UNICOR grade 5 inmates will be $25.00 per quarter. This
             minimum payment may exceed $25.00, taking into
             consideration the inmate’s specific obligations, institution
             resources, and community resources.

             (2) Inmates assigned grades 1 through 4 in UNICOR ordinarily
             will be expected to allot not less than 50% of their monthly
             pay to the payment process. Any allotment which is less than
             the 50% minimum must be approved by the Unit Manager.
             Allotments may also exceed the 50% minimum after
             considering the individual’s specific obligations and resources.

                                          -3-
detail outside the facility in which he is incarcerated, (5) ineligibility for

UNICOR (which is a federal work program designed to “employ and provide job

skills training” to federal inmates, UNICOR, FPI General Overview FAQs,

http://www.unicor.gov/about/faqs/faqsgeneral.cfm), (6) more stringent monthly

commissary spending limits, (7) quartering in the lowest housing status, (8)

ineligibility for community-based programs, (9) ineligibility for a release gratuity,

and (10) ineligibility for an incentive for participation in a residential drug-

treatment program. See 28 C.F.R. § 545.11(d). We question whether the

implementation of these penalties would change the conditions of Mr. Thurston’s

incarceration enough to form the basis for a cognizable habeas claim. See Glaus

v. Anderson, 408 F.3d 382, 387–88 (7th Cir. 2005). But because that issue is not

jurisdictional, we shall address the merits of Mr. Thurston’s contentions.

      Mr. Thurston claimed in his § 2241 application (1) that the Bureau of

Prisons misinterpreted IFRP regulations and (2) that his sentencing court

improperly delegated the setting of his IFRP payment obligations. The Bureau’s

alleged misinterpretation of the regulations is the only issue he raises on appeal.

      Mr. Thurston reads 28 C.F.R. § 545.11(b) to say that when he is

“unassigned to any job and has no institutional income,” Aplt. Br. at 4, the

Bureau may not require him to satisfy his obligations under an IFRP payment plan

to which he agreed, and may not subject him to sanctions for failing to make

timely payments. He asserts that § 545.11(b) allows payments to be withheld

                                           -4-
from his account only if he has a work assignment as described in § 545.11(b)(1)

or (2). He further argues that requiring him to continue to make IFRP payments

would necessarily require him to do so with funds sent to him by his family,

contrary to the intent of the regulations.

      Mr. Thurston’s view of the regulations is incorrect. To begin with,

§ 545.11(b) does not by its terms limit its applicability to inmates holding work

assignments. See 28 C.F.R. § 545.11(b). Although § 545.11(b) does not state a

minimum payment amount for inmates without work (as do § 545.11(b)(1) and (2)

for inmates who are employed), it contains no suggestion that unemployed

inmates are exempt from making their agreed-to IFRP payments.

      We also reject his argument that IFRP payments should not be made from

funds received from an inmate’s family. The regulation states: “The inmate is

responsible for making satisfactory progress in meeting his/her financial

responsibility plan and for providing documentation of these payments to unit

staff. Payments may be made from institution resources or non-institution

(community) resources.” 28 C.F.R. § 545.11(b). Thus, § 545.11(b) “authorize[s]

the Bureau to consider funds received from sources other than prison work in

determining whether an inmate is able to participate in the IFRP.” Pierson v.

Morris, 282 F. App’x 347, 348 (5th Cir. 2008) (unpublished). We see no

indication that family gifts are excluded from the category of “non-institution

(community) resources.” Mr. Thurston points out that $75 per month is exempted

                                             -5-
from assessments for the IFRP so that the inmate can maintain telephone contact

with his family; but he fails to explain why it should follow from that exemption

that all family contributions must be exempted.

      We AFFIRM the judgment of the district court.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




                                        -6-
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http://www.unicor.gov/about/faqs/faqsgeneral.cfm                                                                        7/6/2010
