           Case: 14-13408   Date Filed: 05/06/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13408
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:09-cr-00586-JSM-MAP-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

BEAU DIAMOND,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                              (May 6, 2015)

Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 14-13408        Date Filed: 05/06/2015       Page: 2 of 5


       Beau Diamond, a federal prisoner proceeding pro se, appeals the district

court’s denial of his pro se post-judgment motion challenging the $23,065,090.34

restitution order entered following his 2010 convictions for wire fraud, mail fraud,

illegal money transactions, and transportation of stolen property. 1 Diamond asserts

that the order should be vacated because due process prevents ordering a criminal

defendant to perform the impossible.

       We are obligated to address the district court’s jurisdiction to issue the ruling

we are reviewing on appeal. United States v. Diveroli, 729 F.3d 1339, 1341 (11th

Cir. 2013). Jurisdictional issues are reviewed de novo. See United States v.

Stossel, 348 F.3d 1320, 1321-22 (11th Cir. 2003) (reviewing whether a district

court had jurisdiction to consider a defendant’s motion to modify his sentence).

       The Mandatory Victims Restitution Act (“MVRA”) requires the district

court to order restitution in fraud cases. 18 U.S.C. § 3663A(c)(1)(A)(ii). An order

of restitution under the MVRA is issued and enforced in accordance with

18 U.S.C. § 3664. 18 U.S.C. § 3663A(d). Before the MVRA, restitution was


1
         To the extent Diamond also challenges the district court’s ruling on his motion for
clarification, we do not have jurisdiction to consider his argument because he did not identify
that order in his notice of appeal. Although we construe such notices liberally, “[t]he general
rule in this circuit is that an appellate court has jurisdiction to review only those judgments,
orders or portions thereof which are specified in an appellant’s notice of appeal.” Osterneck v.
E.T. Barwick Indus., Inc., 825 F.2d 1521, 1529 (11th Cir. 1987); see also Moton v. Cowart, 631
F.3d 1337, 1341 n.2 (11th Cir. 2011) (explaining that when the appellant listed a specific order in
his notice of appeal, we lacked jurisdiction to consider claims dismissed in an earlier, unnamed
order).


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discretionary and the district court was required to consider the defendant’s ability

to pay in determining the amount of restitution owed, but the MVRA eliminated a

court’s authority to consider that factor. See United States v. Thayer, 204 F.3d

1352, 1357 (2000). Now, under the MVRA, the court must order restitution to

each victim in the full amount of each victim’s losses as determined by the court

without consideration of the economic circumstances of the defendant. 18 U.S.C.

§ 3664(f)(1)(A).

      Courts do not have inherent authority to modify a sentence outside of the

framework provided by statutes and the Federal Rules of Criminal Procedure. See

United States v. Diaz-Clark, 292 F.3d 1310, 1317-18 (11th Cir. 2002) (citing

Carlisle v. United States, 517 U.S. 416, 426, 116 S. Ct. 1460, 1466 (1996)

(providing that, whatever the scope of a district court’s inherent power, it does not

include the power to develop rules that circumvent or conflict with the Federal

Rules of Criminal Procedure or statutory provisions)). The MVRA provides that

an otherwise final order can be: (1) corrected under Federal Rule of Criminal

Procedure 35; (2) appealed and modified under 18 U.S.C. § 3742; (3) amended

under 18 U.S.C. § 3664(d)(5); or (4) adjusted under 18 U.S.C. §§ 3664(k), 3572, or

3613A. 18 U.S.C. § 3664(o)(1).

      Rule 35(a) permits a district court to correct a sentence that resulted from

arithmetical, technical, or other clear error within 14 days of orally pronouncing


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the sentence. Fed. R. Crim. P. 35(a)(c). Section 3742 governs direct appeals of

sentences. 18 U.S.C. § 3742. A restitution order can be modified under

§ 3664(d)(5) if the victim’s losses are not ascertainable by a date 10 days prior to

sentencing or if a victim subsequently discovers further losses. 18 U.S.C.

§ 3664(d)(5). A restitution order can also be adjusted under § 3664(k) due to a

material change in economic circumstances. 18 U.S.C. § 3664(k). Finally, a court

may adjust a payment schedule or take any other action necessary to obtain

compliance with an order of restitution upon a finding that the defendant is in

default. 18 U.S.C. § 3613A(a).

      Diamond argued below that his total sentence could be modified under

§ 3742, but that provision only provides for amendments to sentences following

appeals, and Diamond directly appealed without challenging his total sentence.

See 18 U.S.C. § 3742(a). Moreover, he did not argue that modification was proper

under any of the other procedures set forth in § 3664(o). Without statutory

authorization to modify Diamond’s restitution order, the district court lacked

jurisdiction to alter its order. See Diaz-Clark, 292 F.3d at 1317-18. Accordingly,

we construe the district court’s order denying the motion as a dismissal and affirm.

Cf. Cani v. United States, 331 F.3d 1210, 1216 (11th Cir. 2003) (construing a

dismissal as a denial because the district court possessed subject matter jurisdiction

and should have denied the defendant’s motion on the merits).


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AFFIRMED.




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