CLD-112
                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 11-2809
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                   TYRONE SAVAGE,
                                            Appellant

                       ____________________________________

                     On Appeal from the United States District Court
                                for the District of Delaware
                 (D.C. Criminal Nos. 03-cr-00094-001, 04-cr-00028-001)
                       District Judge: Honorable Gregory M. Sleet
                       ____________________________________

                Submitted on the Appellee’s Motion for Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 February 9, 2012

        Before: RENDELL, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                              (Opinion filed: March 1, 2012 )
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       Pro se appellant Tyrone Savage, a federal prisoner incarcerated in Atwater,

California, appeals from an order of the United States District Court for the District of
Delaware denying his “Motion to Defer/Squash Restitution Until Release.” The

government has filed a motion for summary action. For the reasons discussed below, we

will grant the government’s motion and summarily affirm the District Court’s order.

       In 2004, Savage pleaded guilty to eight counts of bank robbery, and in 2005, the

District Court sentenced him to 120 months’ imprisonment. The District Court also

ordered Savage to pay a $900 assessment and $10,696 in restitution. Savage was

instructed to make payments while in custody through the Bureau of Prisons’ Inmate

Financial Responsibility Program (IFRP).

       Savage appealed his sentence, and we affirmed the District Court’s judgment. See

United States v. Savage, 180 F. App’x 334 (3d Cir. 2006). Savage thereafter filed a

motion in the District Court under 28 U.S.C. § 2255, which the Court denied, and we

then refused to issue a certificate of appealability.

       In June 2011, Savage filed the motion that is at issue here. He claimed that jobs

have become less freely available in prison and that, if he continued to pay the restitution

that he owed, he would not be able to “enjoy the purchase of many basic necessities that

would help him to sustain himself while incarcerated.” Accordingly, he asked to suspend

his restitution payments until he is released from prison. Attached to this motion was a

so-called “letter motion.” In the letter motion, Savage reiterated his request to postpone

payment, while also stating that he had “strong feelings against the reimbursement of

restitution to Wachovia,” because, he claimed, the bank had been involved in slave


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trading and drug trafficking. The District Court orally denied this motion, and Savage

filed a timely notice of appeal to this Court.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We may affirm the District

Court on any ground supported by the record. See OSS Nokalva, Inc. v. European Space

Agency, 617 F.3d 756, 761 (3d Cir. 2010). We discern three possible arguments that

Savage’s motion may present: (1) a request to modify the restitution payment schedule

ordered by the District Court; (2) a request to modify the restitution payment schedule

instituted by the IFRP program; and (3) a challenge to the overall validity of the Court-

imposed restitution order. 1

       To the extent Savage sought to challenge the restitution payment schedule

imposed by the District Court, the Court had jurisdiction to modify the payment schedule

to address “any material change in the defendant’s economic circumstances that might

affect the defendant’s ability to pay restitution.” 18 U.S.C. § 3664(k); see also United

States v. Jaffe, 417 F.3d 259, 267 (2d Cir. 2005) (noting that “the district court retains

jurisdiction to amend or adjust the restitution order if there is any material change in [the

defendant’s] economic circumstances”). Here, while Savage claimed, generally, that

prison jobs have become scarce, he failed to present any evidence or specific allegations

about his economic circumstances, such as how much he previously earned per month,

1
  In his appellate brief, Savage argues that the District Court failed to make clear the
statutory basis for the restitution order and that this failure requires the order to be
vacated. That argument, however, was never presented to the District Court, and has thus
been waived. See, e.g., Del. Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006).
Moreover, the argument also fails for the reasons discussed below.
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how much he earns now, or how much money he has in his prison account. Further, his

claimed moral compunction about repaying Wachovia does not constitute a “material

change in [his] economic circumstances.” Accordingly, Savage is not entitled to relief

under § 3664(k). See generally United States v. Vanhorn, 399 F.3d 884, 886 (8th Cir.

2005) (denying motion under § 3664(k) because prisoner failed to present evidence

establishing an “immediate change in his economic circumstances”).

       To the extent that Savage challenges the payments he is required to make through

the IFRP, the proper vehicle for such a claim is a petition under 28 U.S.C. § 2241 filed in

the district where his sentence is being carried out. See McGee v. Martinez, 627 F.3d

933, 937 (3d Cir. 2010); see also United States v. Diggs, 578 F.3d 318, 319-20 (5th Cir.

2009); cf. United States v. Lemoine, 546 F.3d 1042, 1046 (9th Cir. 2008). Thus, to

pursue this claim, Savage must file a § 2241 petition in the Eastern District of California.

       Finally, to the extent that Savage seeks to challenge the overall validity of the

District Court’s restitution order, such a challenge should have been made on direct

appeal. The limited jurisdiction conferred by § 3664(k) does not encompass such a broad

attack on a restitution order. Moreover, even assuming that Savage could challenge a

restitution order via 28 U.S.C. § 2255 — a highly doubtful proposition, see United States

v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999) — he must obtain permission from this

Court before filing a successive motion, see 28 U.S.C. § 2255(h), which he has not done.

Therefore, if Savage intended to proceed under § 2255, the District Court properly

refused relief. See Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002) (explaining
                                              4
that “[w]hen a second or successive habeas petition is erroneously filed in a district court

without the permission of a court of appeals, the district court’s only option is to dismiss

the petition or transfer it to the court of appeals”).

       Accordingly, we grant the government’s motion for summary action and will

affirm the District Court’s judgment.




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