                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 29, 2019
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 18-1460
                                              (D.C. No. 1:15-CR-00279-RBJ-1)
 MARK JACOB JONES,                                       (D. Colo.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before CARSON, BALDOCK, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Accordingly,

we order the case submitted without oral argument.

      Mark Jacob Jones, Sr., appeals from an order of the United States District

Court for the District of Colorado summarily denying his motion to enjoin a


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
condition of supervised release imposed by the United States District Court for

the District of Eastern Virginia. Because the district court did not have

jurisdiction over Jones’s motion, this court remands the matter to the district

court to vacate its order and dismiss Jones’s motion for lack of jurisdiction. Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998) (“When the lower

federal court lacks jurisdiction, we have jurisdiction on appeal, not of the merits

but merely for the purpose of correcting the error of the lower court in

entertaining the suit.”).

      Jones was charged in the Eastern District of Virginia with aggravated

identity theft and conspiracy to commit mail fraud. A warrant was issued for his

arrest. Separately, the District of Colorado issued a search warrant for Jones’s

residence in Colorado. Both warrants were executed on March 5, 2015. During

the search, agents discovered two loaded firearms in Jones’s bedroom. Because

Jones had four previous felony convictions, he was charged in the District of

Colorado with one count of felon in possession of firearms and one count of felon

in possession of ammunition.

      In late 2015, Jones pleaded guilty to mail fraud and aggravated identity

theft in the Eastern District of Virginia. He was sentenced to a total of 126

months’ imprisonment and three years’ supervised release. In 2016, Jones

pleaded guilty to the firearm possession charge in the District of Colorado. For


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that offense, he was ultimately sentenced to six months’ imprisonment. The

District of Colorado imposed no term of supervised release.

      On October 29, 2018, Jones filed a “Motion Requesting a Preliminary and

Permanent Injunction Pursuant to Fed. R. Civ. P. 65.” His motion argued:

(1) Jones is a practicing Rastafarian elder; (2) Rastafarianism emphasizes the use

of marijuana as a sacrament; and (3) the standard condition of supervised release

prohibiting him from possessing and using marijuana will substantially burden his

religious exercise. After the district court summarily denied the motion, Jones

brought the instant appeal.

      Jones’s motion was predicated upon Fed. R. Civ. P. 65. It asked the district

court to “enjoin” the supervised release condition imposed in the Eastern District

of Virginia. Just one of many problems for Jones, however, is conditions of

supervised release are criminal in nature and, therefore, governed by 18 U.S.C.

§ 3583. See United States v. Grigsby, 737 F. App’x 375, 377 (10th Cir. 2018)

(unpublished disposition cited purely for its persuasive value). Jones cannot use

the Federal Rules of Civil Procedure to attack an aspect of his criminal judgment.

See id. at 378 n.5 (noting that the legality of a condition of supervised release

may only be challenged on direct appeal or as collateral attack under § 2255); see

also Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and




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Firearms, 452 F.3d 433, 461 (6th Cir. 2006); United States v. Crusco, 464 F.2d

1060, 1062 (3d Cir. 1972).

      Even if this court were to construe Jones’s motion liberally as a request to

modify the conditions of his supervised release pursuant to § 3583, 1 the District

of Colorado still would lack subject matter jurisdiction. Supervised release

conditions are set at sentencing as part of the original sentence. United States v.

Lonjose, 663 F.3d 1292, 1300 (10th Cir. 2011). “[S]upervised release is as much

a part of the sentence as a term of imprisonment or a fine. We see no reason . . .

to treat the power to modify or revoke a term of supervised release any differently

than we would the power to modify any other aspects of a criminal judgment.”

United States v. Johnson, 861 F.3d 474, 478 (3d Cir. 2017); see also Purviance v.

Maye, 439 F. App’x 377, 378 (5th Cir. 2011) (unpublished); United States v.

Dent, 133 F. App’x 784, 785 (2d Cir. 2005) (unpublished).




      1
       Jones’s motion could not be construed as arising under § 2255 because
such a motion must be filed in the Eastern District of Virginia, the district that
imposed the sentence. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).
Indeed, Jones has filed such a motion in the Eastern District of Virginia. That
court denied Jones’s § 2255 motion and the Fourth Circuit declined to issue a
Certificate of Appealability. United States v. Jones, 678 F. App’x 133, 133 (4th
Cir. 2017). Nor could Jones’s motion be construed as arising under 28 U.S.C.
§ 2241. Section 2241 petitions must be filed in the district where the petitioner is
confined. Bradshaw, 86 F. 3d at 166. Jones is confined in the Federal Medical
Center in Fort Worth, which is located in the United States District Court for the
Northern District of Texas.

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      In his reply brief, Jones asserts jurisdiction is proper in the District of

Colorado because he will surely be transferred to the district to serve his term of

supervised release. Contrary to Jones’s contentions, however, that assertion is

entirely speculative. Even if this court were to accept this rank speculation, it

would not solve the jurisdictional problem. It is, of course, possible to transfer

jurisdiction over a defendant’s supervised release from one district court to

another. See 18 U.S.C. § 3605. Such a transfer is only possible, however, when

Jones is actually released from prison. Section 3605 provides: “A court, after

imposing a sentence, may transfer jurisdiction over a probationer or person on

supervised release to the district court for any other district . . . .” That is, § 3605

“is limited to defendants who are on supervised release.” United States v. Bass,

233 F.3d 536, 537 (7th Cir. 2000). Until the Eastern District of Virginia actually

transfers jurisdiction over Jones to Colorado, something the Eastern District of

Virginia cannot do until Jones is actually released from custody, the District of

Colorado lacks jurisdiction to modify the terms of Jones’s supervised release.




                                           -5-
      For those reasons set out above, the order of the United States District

Court for the District of Colorado denying Jones’s motion on the merits is

REMANDED to the district court to vacate its order denying Jones’s motion and

to, thereafter, dismiss the motion for lack of jurisdiction.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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