     Case: 09-51065     Document: 00511241611          Page: 1    Date Filed: 09/22/2010




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

                                                 FILED
                                                                         September 22, 2010
                                     No. 09-51065
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

KIRK IRVING KOSKELLA,

                                                   Petitioner-Appellant

v.

M. TRAVIS BRAGG, Warden,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:08-CV-478


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Kirk Irving Koskella, federal prisoner # 08480-081, pleaded guilty
pursuant to a written plea agreement to conspiring to defraud the Internal
Revenue Service, in violation of 18 U.S.C. § 371, and wire fraud, in violation of
18 U.S.C. § 1343. The United States District Court for the District of Utah
sentenced him to a total of 120 months of imprisonment. He appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition for writ of habeas corpus.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-51065

       Koskella has not briefed any challenge to the dismissal of his claims that
the Bureau of Prisons (BOP) refused to provide him a statement of account,
failed to apply his payments toward the restitution obligation, and violated
provisions of the Fair Debt Collection Practices Act.      Accordingly, he has
abandoned those issues. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
       Koskella claims that he is entitled to release from custody as a result of
the district court’s failure to hold a proper hearing regarding the restitution
amount, his nonappearance at the resentencing hearing, the absence of a
determination of the loss amount, and the length of the sentence imposed for
Count One. Such claims relate to errors that allegedly occurred at or prior to
sentencing (or, here, resentencing) and thus are not properly raised in a § 2241
petition. Reyes-Requena v. United States, 243 F.3d 893, 900 (5th Cir. 2001).
Similarly, to the extent he challenges the sentencing court’s imposition of
restitution, his claim is directed at an aspect of his sentence and not the
execution of his sentence. See Cox v. Warden, Federal Detention Center, 911 F.2d
1111, 1114 n.5 (5th Cir. 1990). Because Koskella does not contend that he was
convicted of an offense that is nonexistent or that his claim was foreclosed by
circuit law, Koskella does not meet the essential criteria for supporting a claim
under the savings clause of 28 U.S.C. § 2255. See Reyes-Requena, 243 F.3d at
904.
       Thus, to the extent that Koskella’s claims challenging the restitution and
loss amounts, the resentencing hearing, and the length of his sentence are
construed as having been filed pursuant to § 2241, that portion of his § 2241
petition was an unauthorized action which the district court was without
jurisdiction to entertain. See United States v. Early, 27 F.3d 140, 141-42 (5th
Cir. 1994). Koskella therefore has appealed, in part, “from the denial of a
meaningless, unauthorized” action. Id. at 142. Accordingly, we affirm the
dismissal of these § 2241 claims on an alternative basis.       See id.; see also

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Brewster v. Dretke, 587 F.3d 764, 769 n. 3 (5th Cir. 2009) (noting this court’s
practice of affirming the district court on alternative grounds when those
grounds are supported by the record), cert. denied, 130 S. Ct. 3368 (2010).
      Koskella also seeks immediate release from custody as a result of the
BOP’s alleged breach of the plea agreement, specifically, its provision that the
Government would not oppose Koskella’s “request to choose the correctional
facility where he will be incarcerated.” Even if it is assumed that Koskella’s
claim of a breach by the BOP was properly presented under § 2241, Koskella has
not established that he is entitled to relief. First, the Due Process Clause does
not, by itself, endow a prisoner with a protected liberty interest in the location
of his confinement. Meachum v. Fano, 427 U.S. 215, 225 (1976). A prisoner has
no constitutional right to be housed in a particular facility. See Tighe v. Wall,
100 F.3d 41, 42 (5th Cir. 1996).        Second, as the district court correctly
determined, the BOP did not breach the plea agreement executed between
Koskella and the United States Attorney for the District of Utah. Koskella’s
present assertion that the plea agreement requires the BOP to assent to his
wishes and designate a place or type of imprisonment consistent therewith is
contrary to his understanding, expressed in open court and under oath, that the
plea agreement did not amount to a binding promise on the BOP. By exercising
its authority pursuant to 18 U.S.C. § 3621(b), the BOP did not breach the plea
agreement. Third, Koskella’s claim that the BOP violated § 3621(b) in denying
his placement request because of his “significant financial resources” misreads
that statute. See § 3621(b) (“In designating the place of imprisonment or making
transfers under this subsection, there shall be no favoritism given to prisoners
of high social or economic status.”). Koskella has not established that he is
entitled to any of the relief requested in the district court.
      Koskella additionally contends that through several unwarranted
transfers and the theft and destruction of his papers, BOP staff retaliated
against him and prevented him from seeking judicial redress. Because these

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issues are raised for the first time on appeal, we will not consider them. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
      We caution Koskella that any future frivolous, repetitive, or otherwise
abusive filings may result in the imposition of sanctions, including dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this court
or any court subject to this court’s jurisdiction. The judgment of the district
court is AFFIRMED. Koskella’s motion for bail pending appeal and all other
outstanding motions are DENIED, and a SANCTION WARNING IS ISSUED.




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