                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 14-7607


JEREMY FONTANEZ,

                Petitioner - Appellant,

           v.

TERRY O’BRIEN, Warden,

                Respondent - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:14-cv-00077-FPS-JSK)


Argued:   October 27, 2015                Decided:   December 2, 2015


Before MOTZ, GREGORY, and HARRIS, Circuit Judges.


Reversed and remanded by published opinion. Judge Harris wrote
the opinion, in which Judge Motz and Judge Gregory joined.


ARGUED: Adam H. Farra, SIDLEY AUSTIN LLP, Washington, D.C., for
Appellant.     Tara Noel Tighe, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.      ON BRIEF:
Jonathan F. Cohn, SIDLEY AUSTIN LLP, Washington, D.C., for
Appellant.    William J. Ihlenfeld, II, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia,
for Appellee.
PAMELA HARRIS, Circuit Judge:

     Jeremy Fontanez, a federal inmate, filed a habeas corpus

petition     under   28     U.S.C.    § 2241   seeking       release    from    the

obligation to make restitution payments through the Bureau of

Prisons’ Inmate Financial Responsibility Program.                   The district

court found that Fontanez’s claim was not cognizable under 28

U.S.C.     § 2241     and    dismissed       the   case.         We     disagree.

Accordingly, we reverse the district court’s order and remand

the case for proceedings on the merits.



                                        I.

                                        A.

     In 2004, Jeremy Fontanez pleaded guilty to his involvement

in a series of armed robberies and was sentenced to 420 months

in   prison    in    the    Eastern    District    of    Pennsylvania.          The

sentencing     court       imposed    restitution       in    the      amount    of

$27,972.61.     It provided the following special instructions in

the “schedule of payments” section of the sentencing order:

     Defendant shall make restitution payments from any
     wages he may earn in prison in accordance with the
     Inmate Financial Responsibility Program. Restitution
     shall be due immediately.

J.A. 167.

     The Inmate Financial Responsibility Program (“IFRP”) is a

Bureau of Prisons (“BOP”) program that enables prisoners to make


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scheduled      payments        from    their       inmate       accounts        toward    court-

ordered      financial       obligations.               See     28     C.F.R.    § 545.10–11.

Prison staff assist inmates in developing financial plans, which

are subject to periodic review.                         Id.     As the parties in this

case agree, the IFRP is voluntary; the BOP cannot compel an

inmate to make payments.                See United States v. Boyd, 608 F.3d

331,     334    (7th        Cir.    2010).           But       inmates        with   financial

obligations who refuse to participate in the IFRP may no longer

be     eligible       for    many     privileges,             including       more   desirable

housing and work outside the prison.                      28 C.F.R. § 545.11(d).

       In    April     2013,    Fontanez       was      moved     to    the     United    States

Penitentiary – Hazelton (“USP Hazelton”) in Bruceton Mills, West

Virginia.       He signed an Inmate Financial Plan, agreeing to pay

$25 each quarter toward his court-ordered financial obligations

through the IFRP.            About one year later, however, Fontanez filed

a written request to be released from the IFRP.

       In the request, Fontanez argued that the BOP’s requirement

that    he     make    IFRP     payments       violated          the    Mandatory        Victims

Restitution Act of 1996 (“MVRA”).                       The MVRA obligates a district

court to “specify in [a] restitution order the manner in which,

and the schedule according to which, the restitution is to be

paid.”       18 U.S.C. § 3664(f)(2).                    Fontanez contended that the

sentencing        court      had      failed       to     set     a     schedule     for     his

restitution payments and had instead unlawfully delegated its

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power to set that schedule to the BOP.                      Therefore, the BOP

lacked any authority to require him to make restitution payments

through the IFRP or to punish him for refusing to pay.

     Fontanez’s initial request was denied by a unit counselor

on April 10, 2014.        The request was denied a second time by the

Warden of USP Hazelton, appellee Terry O’Brien (“the Warden”),

on May 5, 2014.     The Warden noted that the sentencing court had

ordered Fontanez to “make restitution payments from any wages he

may earn in prison in accordance with the [IFRP],” and he stated

that “[t]he BOP does not have the authority to overrule the

decision set forth by the Court.”          J.A. 26.

                                      B.

     In   June    2014,    proceeding      pro        se,   Fontanez   filed    an

application for a writ of habeas corpus under 28 U.S.C. § 2241

in the Northern District of West Virginia.

     As a general matter, a federal prisoner must challenge the

execution of a sentence under 28 U.S.C. § 2241, and the sentence

itself under 28 U.S.C. § 2255.          In re Vial, 115 F.3d 1192, 1194

& n.5 (4th Cir. 1997).            Relevant to this appeal, the § 2255

“savings clause” provides that prisoners may petition under §

2241 when § 2255 is “inadequate or ineffective” to address their

claims.   28 U.S.C. § 2255(e).

     Fontanez contended that § 2241 was the proper procedural

vehicle   for    his      claim    because       he     was   challenging      the

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“execution,” and not the validity, of his sentence.                                        J.A. 5–6.

He argued that the BOP had no authority to require him to make

restitution     payments          through      the       IFRP       because      the       sentencing

court had failed to set forth a proper restitution order and

schedule,     in    violation       of       the       MVRA.        He    also     alluded         to    a

violation of his due process rights.                                He asked the district

court    to   enjoin    the       BOP       from       requiring      him     to   make       further

payments through the IFRP.

       The    Warden       filed        a     motion          to     dismiss       or,       in     the

alternative, for summary judgment.                        The matter was referred to a

magistrate     judge,      who     issued          a    report       recommending           that    the

government’s        motion    be        granted          and       Fontanez’s          petition         be

denied.       The    district        court         adopted         the    magistrate          judge’s

report in full and dismissed the case.

        The court held that Fontanez was challenging his sentence

“as   imposed,”      not     as    executed,            and    so     could      not       bring    his

petition directly under 28 U.S.C. § 2241.                                J.A. 83.          The court

also found that Fontanez’s claim was not cognizable under 28

U.S.C. § 2255, either, because that provision could not be used

to    challenge     solely        the       restitution            portion    of       a    sentence.

Finally,      the    court        determined            that       even     if     §       2255    were

“inadequate or ineffective” in this case, Fontanez could not

resort to § 2241 under the “savings clause” because his claim

was statutory, not constitutional, and because he did not allege

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a     “complete      miscarriage         of       justice”     or       a    proceeding

“inconsistent with the rudimentary demands of fair procedure.”

J.A. 84 (quoting United States v. Timmreck, 441 U.S. 780, 784

(1979)).      Accordingly,       the     court     dismissed       Fontanez’s     habeas

corpus petition.

       This timely appeal followed.



                                          II.

                                          A.

       We   review    the    district     court’s     denial       of   habeas    corpus

relief de novo.            Waddell v. Dep’t of Corr., 680 F.3d 384, 392

(4th Cir. 2012).

       The district court denied Fontanez’s petition because it

understood his claim to be a challenge to the validity of his

sentencing order, and not to the execution of his sentence.                         For

that reason, the court found that his claim was not directly

cognizable under § 2241.            But as Fontanez’s arguments have been

clarified     on   appeal,     it   is    now     apparent     that     he   is   indeed

challenging the execution of his sentence by the BOP.

       Fontanez seeks relief from “the decision of the Bureau of

Prisons to force him into the IFRP and its accompanying refusal

to release him from it.”            Reply Br. at 8.          He contends that the

BOP    exceeded      its    authority     and      usurped     a    “‘core    judicial

function’” by setting “the basic terms of his restitution,” in

                                              6
contravention of both the MVRA and the constitutional separation

of    powers.     Opening      Br.    at   9–10    (quoting    United    States   v.

Miller, 77 F.3d 71, 78 (4th Cir. 1996)).                 And while a premise of

Fontanez’s argument is that the sentencing order is invalid, he

does not seek to have that order set aside.                    Instead, the claim

on which he seeks relief is that the BOP’s execution of the

restitution portion of his sentence is unlawful.

       It is well established that “attacks on the execution of a

sentence are properly raised in a § 2241 petition.”                     In re Vial,

115 F.3d at 1194 n.5; see also United States v. Snow, 748 F.2d

928, 933–34 (4th Cir. 1984); McGee v. Martinez, 627 F.3d 933,

937 (3d Cir. 2010); United States v. Diggs, 578 F.3d 318, 319–20

(5th Cir. 2009); Matheny v. Morrison, 307 F.3d 709, 712 (8th

Cir. 2002).

       Moreover, other circuit courts have expressly held that an

inmate’s    challenge     to    the    BOP’s      administration    of    the    IFRP

relates to the “execution” of a sentence and is properly brought

under § 2241.      McGee, 627 F.3d at 937; Diggs, 578 F.3d at 319–

20;    Matheny,   307    F.3d    at    712.       We    have   reached    the    same

conclusion in unpublished opinions.

       We   now   hold   that    an     inmate’s       challenge   to    the    BOP’s

administration of the IFRP is a challenge to the “execution” of




                                           7
a   sentence     that      is   cognizable     under   28   U.S.C.     §   2241.

Accordingly, we reverse the district court’s order. *

        Because the district court did not reach the merits of this

case, we remand it for further proceedings.             But we observe that

the distance between the parties appears to have narrowed as the

issues have been refined on appeal.                Fontanez challenges the

Warden’s refusal to let him stop making payments through the

IFRP.       The Warden now takes the position that “the IFRP is a

purely voluntary program” and that Fontanez “is entitled to stop

participating at any time.”             Response Br. at 13.        We defer to

the district court to determine in the first instance the extent

to which it is necessary to reach the merits of this case.



                                        III.

     We find that Fontanez’s claim is cognizable under 28 U.S.C.

§ 2241      because   he   challenges    the   execution    of   his   sentence.

Accordingly, we reverse the district court’s order and remand

for proceedings consistent with this opinion.

                                                       REVERSED AND REMANDED




        *
       For that reason, we do not address the remainder of the
district court’s analysis under § 2255’s savings clause.



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