                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-6311



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DOUGLAS CAMPBELL, II,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (1:98-cr-00176-NCT; 1:05-cv-01035-NCT)


Submitted:   June 30, 2006                 Decided:   July 20, 2006


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded with instructions by unpublished per curiam
opinion.


Douglas Campbell, II, Appellant Pro Se. Angela Hewlett Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Douglas Campbell, II, appeals the district court’s order

adopting the magistrate judge’s recommendation and construing his

Fed. R. Crim. P. 36 motion as a motion under 28 U.S.C. § 2255

(2000), and dismissing it without prejudice to file a new motion on

the proper § 2255 form.   We vacate the district court’s order and

remand for further proceedings as set forth below.

           Campbell was convicted of bank robbery.   In addition to

imposing a 120-month sentence and a three-year term of supervised

release, the district court ordered Campbell to pay restitution of

$2874.   The criminal judgment expressly ordered payment of $900 of

the restitution payable immediately, and set out a payment schedule

for any amount remaining after incarceration, with a schedule for

repayment during Campbell’s period of supervised release. Although

the criminal judgment did not specifically delegate authority to

the Bureau of Prisons (“BOP”) to set the amount and timing of

payments during incarceration, the district court did not set a

payment schedule for that time period in the judgment and Campbell

claims the BOP has been determining the installment payments.

           In his motion, Campbell asserts that the district court

improperly delegated its authority to set the amount and timing of

his restitution payments to the BOP in violation of United States

v. Miller, 77 F.3d 71, 78 (4th Cir. 1996).   He seeks an amendment

to the judgment order to reflect a schedule of payments for which


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he is responsible during incarceration, not to exceed $50 per

quarter.

           Campbell’s motion challenges only the implementation of

the restitution portion of his sentence.   Because he does not seek

to be released from custody, we find that the district court erred

in construing his motion pursuant to § 2255, and rather should have

construed it as a petition for habeas corpus relief arising under

28 U.S.C. § 2241 (2000).    See Blaik v. United States, 161 F.3d

1341, 1342-43 (11th Cir. 1998) (collecting cases holding that a §

2255 motion may not be used for challenging fines or restitution

orders).

           A § 2241 petition must be brought in the district in

which petitioner is incarcerated, see In re Jones, 226 F.3d 328,

332 (4th Cir. 2000), and Campbell presently is incarcerated in

Butner, North Carolina.     Accordingly, we vacate the district

court’s order and remand for the district court to determine

whether transferring Campbell’s § 2241 petition to the proper

federal district court would serve the interests of justice, see 28

U.S.C. § 1631 (2000), or whether the action is more appropriately

dismissed without prejudice to allow Campbell the opportunity to

file his action in the appropriate district court.*    We dispense

with oral argument because the facts and legal contentions are


     *
      We do not mean to suggest that there is any infirmity in the
judgment order as presently entered, and leave that determination
to the appropriate district court.

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adequately presented in the materials before the court and argument

would not aid the decisional process.



                                              VACATED AND REMANDED
                                                 WITH INSTRUCTIONS




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