    Case: 18-10465    Document: 00514835543    Page: 1   Date Filed: 02/14/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT

                                                           United States Court of Appeals
                                No. 18-10465                        Fifth Circuit

                                                                  FILED
                                                           February 14, 2019
                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                         Clerk

                  Plaintiff–Appellee,

versus

RANDY DEWAYNE PITTMAN,

                  Defendant–Appellant.



                Appeal from the United States District Court
                     for the Northern District of Texas




Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Randy Pittman was convicted and sentenced. With his term of incarcer-
ation set to expire, Pittman moved for relocation of his supervised release
(“SR”) per 18 U.S.C. § 3605 (2012). The district court denied the motion as
premature because Pittman was not then (and still is not) on SR. Concluding
that we lack jurisdiction, we dismiss the appeal.

                                        I.
      Pittman pleaded guilty of being a felon in possession of a firearm, in
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                                        No. 18-10465
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced
him to fifty-one months imprisonment, followed by three years of SR. Pittman
seeks to serve his SR in the Northern District of Georgia, where he has familial
ties, including a young son, instead of in the Northern District of Texas, where
he has no such ties. Consequently, in April 2018, Pittman moved for relocation
of his SR.

       The district court denied the motion, finding that “[b]ecause Pittman
remains incarcerated and is not yet ‘on’ [SR], his request for transfer of juris-
diction is premature. The [c]ourt cannot transfer jurisdiction of [SR] while a
defendant is incarcerated.” 1 Pittman appeals, pro se.

                                               II.
                                               A.
       Pittman makes two principal arguments. First, he asserts that the
district court erroneously concluded that his request for transfer was prema-
ture, maintaining that the district court “can transfer jurisdiction to another
district for supervision” even though he is incarcerated. Pittman faults the
court’s “interpretation” of § 3605 and contends that “[i]f [his] [c]ase [m]anager
can file [a] relocation request [for SR] while the Defendant is incarcerated, the
[d]istrict [c]ourt lacks no jurisdiction.”


       1 See, e.g., United States v. Miller, 547 F.3d 1207, 1213 (9th Cir. 2008) (“Because Miller
remained under BOP custody while he was at Bannock County Jail, his [SR] did not—and
could not—commence until he was released from the Work Release Program.”); United States
v. Bass, 233 F.3d 536, 537–38 (7th Cir. 2000) (“It is true that [28 U.S.C. § 3605] is limited to
defendants who are on [SR] . . . .”); United States v. Siegel, No. 1:08-CR-84-jgm-01, 2013 WL
461217, at *1 (D. Vt. Feb. 7, 2013) (“Because defendant will not be released from his
imprisonment until January 31, 2014, he is not yet ‘on’ [SR]. Accordingly, the Court may not
transfer jurisdiction over his [SR] at this time and his motion requesting that relief must be
denied.”); United States v. Fuller, 211 F. Supp. 2d 204, 205–06 (D. Me. 2002) (“Here, Defen-
dant is not yet on [SR] and will not be so until January 2003. The Court concludes that it is
premature to determine at this time the district that should have jurisdiction over the exe-
cution of this Defendant’s term of [SR] . . . .”).
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       Second, Pittman avers that forcing him to enter a residential reentry
center (“RRC”) in the Northern District of Texas would undermine his ability
“to [reintegrate] into society.” He emphasizes that “[t]he primary function of
the RRC is to provide [him] with the time needed to attain a stable residence,
gainful employment[,] and to prepare for his [reentry] into society.” Ulti-
mately, Pittman asserts that his “chance of criminal recidivism is far less likely
if he [is] release[d] into an environment where he has support and stability.”

       The government contends that we lack jurisdiction because “this appeal
is not from a final order.” The government maintains that “because—as the
district court correctly concluded—Pittman’s motion is premature, there is no
final order under 28 U.S.C. § 1291 . . . .”

       “Finality as a condition of review is [a] historic characteristic of federal
appellate procedure.” Cobbledick v. United States, 309 U.S. 323, 324 (1940).
Therefore, “as courts of limited jurisdiction, we are obliged to examine the basis
of our own jurisdiction,” Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir.
1985), before reviewing the merits. 2

                                              B.
       Pittman avers that we have jurisdiction under 28 U.S.C. § 1291,
18 U.S.C. § 3742(a), and Federal Rule of Appellate Procedure 4(b). 3 Section


       2  Jurisdiction over criminal appeals has tested even the most distinguished jurists
since the early days of the Republic. Compare United States v. Simms, 5 U.S. (1 Cranch) 252,
253 (1803) (Marshall, C.J.) (assuming, mistakenly, that the Court had jurisdiction in a
criminal appeal concerning a writ of error sought by the United States in the circuit court for
the District of Columbia), with United States v. More, 7 U.S. (3 Cranch) 159, 172–74 (1805)
(Marshall, C.J.) (finding that the Court lacked jurisdiction to hear the criminal appeal and
noting that “[n]o question was made in [Simms] as to the jurisdiction. It passed sub silentio,
and the court does not consider itself as bound by that case.”). See also United States v.
Sanges, 144 U.S. 310, 318–22 (1892) (discussing the history of criminal appeals and related
jurisdictional questions).
        3 This court generally “construe[s] liberally the claims of pro se appellants.” United

States v. Torres, 163 F.3d 909, 910 n.5 (5th Cir. 1999).
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1291 states that “[t]he courts of appeals . . . shall have jurisdiction of appeals
from all final decisions of the district courts of the United States . . . .” Section
3742(a) permits, in certain circumstances, a defendant to “file a notice of
appeal in the district court for review of an otherwise final sentence.” Rule 4(b)
governs the filing and timing of criminal appeals.

      Unfortunately, none of these provisions provides jurisdiction. 4 With
respect to § 1291, “an order is final only when it ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.”
United States v. Branham, 690 F.3d 633, 635 (5th Cir. 2012) (quoting Thomp-
son, 754 F.3d at 1245). The district court has not yet entered a final order
determining whether to authorize Pittman’s request for a transfer of jurisdic-
tion. Instead, the court concluded that Pittman’s motion was “premature”
because “[t]he [c]ourt cannot transfer jurisdiction of [SR] while a defendant is
incarcerated.” Consequently, the best view is that, as in Branham, the denial
of Pittman’s motion is “simply not a final, appealable order.” Id.

      Similarly, § 3742(a) does not provide jurisdiction to hear Pittman’s
appeal. As the government notes, this statutory provision “applies to sen-
tences, not transfers of jurisdiction over [SR] terms.” Moreover, in United
States v. Fernandez, 379 F.3d 270, 277 n.8 (5th Cir. 2004), we held that “the
location of [SR] jurisdiction is not a condition of the [SR].” Therefore, because
Pittman is not challenging a condition of his sentence, this provision does not
afford jurisdiction.

      One other potential jurisdictional basis—although not expressly cited by
Pittman—is the collateral order doctrine, which allows appeals from a “small
class [of orders] which finally determine claims of right separable from, and



      4   Rule 4(b) is not, itself, an independent basis for jurisdiction. See FED. R. APP. P. 4(b).
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collateral to, rights asserted in the action, too important to be denied review
and too independent of the cause itself to require that appellate consideration
be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949); cf. Bank of Columbia v. Sweeny, 26 U.S.
(1 Pet.) 567, 569 (1828) (Marshall, C.J.). “The collateral order doctrine estab-
lishes that certain decisions of the district court are final in effect although
they do not dispose of the litigation.” United States v. Brown, 218 F.3d 415, 420
(5th Cir. 2000) (quoting Davis v. E. Baton Rouge Par. Sch. Bd., 78 F.3d 920,
925 (5th Cir. 1996)). To be appealable, an order must “(1) conclusively deter-
mine the disputed question, (2) resolve an important issue completely separate
from the merits of the action, and (3) be effectively unreviewable on appeal
from a final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting P.R.
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)).
“The collateral order doctrine is rarely applied in criminal cases,” In re Grand
Jury Subpoena, 190 F.3d 375, 381 (5th Cir. 1999), and is interpreted “with the
utmost strictness.” 5

       The better view is that the collateral order doctrine is not applicable
here. The district court did not “conclusively determine the disputed question,”
finding only that the motion was “premature,” so long as Pittman remains


       5 Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989) (quoting Flanagan
v. United States, 465 U.S. 259, 265 (1984)); see also Mohawk Indus. v. Carpenter, 558 U.S.
100, 108–09 (2009) (Sotomayor, J.) (“The crucial question . . . is whether deferring review
until final judgment so imperils the interest as to justify the cost of allowing immediate
appeal of the entire class of relevant orders. We routinely require litigants to wait until after
final judgment to vindicate valuable rights, including rights central to our adversarial
system.”). In Midland Asphalt, 489 U.S. at 799, the Court noted that “[a]lthough we have
had numerous opportunities in the 40 years since Cohen to consider the appealability of
prejudgment orders in criminal cases, we have found denials of only three types of motions
to be immediately appealable: motions to reduce bail, Stack v. Boyle, 342 U.S. 1 (1951),
motions to dismiss on double jeopardy grounds, Abney v. United States, 431 U.S. 651 (1977),
and motions to dismiss under the Speech or Debate Clause, Helstoski v. Meanor, 442 U.S.
500 (1979).”
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                                 No. 18-10465
incarcerated. Moreover, it did not “resolve an important issue completely
separate from the merits of the action” and instead squarely addressed the
jurisdictional transfer issue. Lastly, the order is not “effectively unreviewable
on appeal from a final judgment” because should Pittman choose to renew his
motion once on SR, he would be able to appeal any adverse judgment per
§ 1291. Consequently, the collateral order doctrine does not confer appellate
jurisdiction here.

      The appeal is DISMISSED for want of jurisdiction.




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