United States v. Wayne ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
September 9, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-1370
v. (D. Colorado)
JACQUELINE CHRISTINE WAYNE, (D.C. No. 1:08-CR-00385-MSK-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, BALDOCK, and BRORBY, Circuit Judges.
After examining the briefs and the appellate record, this court concluded
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, on
August 3, 2010, the case was ordered submitted for disposition on the briefs.
On January 7, 2005, appellant Jacqueline C. Wayne pleaded guilty to one
count of wire fraud, in violation of 18 U.S.C. § 1343. She was sentenced by the
United States District Court for the Western District of Missouri to thirty-seven
*
This order and judgment is not binding precedent except under the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.
months’ imprisonment and three years of supervised release. She was also
ordered to pay $208,117.04 in restitution. Wayne did not file a timely direct
appeal with the Eighth Circuit Court of Appeals.
After Wayne was released from incarceration, jurisdiction over her
supervision was transferred from the Western District of Missouri to the District
of Colorado pursuant to 18 U.S.C. § 3605. On July 19, 2009, Wayne filed a
motion in the Colorado district court captioned, “Motion to Modify Terms of
Supervised Release, Stay Restitution Order and Set Aside Order of Restitution.”
Although styled as a motion seeking modification of the conditions of her
supervised release, the motion actually challenged the legality of the methodology
used by the Missouri court when it imposed restitution. 1 Wayne sought review of
the restitution component of her sentence and specifically requested that “the
award of restitution be set aside” in its entirety because of the alleged errors.
The district court denied Wayne’s motion, concluding the issue raised
therein should have been raised on direct appeal or in collateral proceedings
before the time for pursuing those avenues had elapsed. The court likewise
1
In her motion, Wayne did not ask the federal district court in Colorado to
modify the terms of her supervised release by, for example, reducing the amount
of her monthly restitution payment. See 18 U.S.C. § 3583(e)(2) (permitting a
court with jurisdiction over a person on supervised release to “modify . . . the
conditions of supervised release”). Instead, she argued the restitution order
violated the Due Process Clause of the Fourteenth Amendment and asked that it
be excised completely from the judgment. We note that the Fourteenth
Amendment applies to the states and Wayne was sentenced by the federal court.
We assume she intended to base her argument upon the due process protections
guaranteed by the Fifth Amendment.
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denied Wayne’s motion for reconsideration, reiterating that it lacked jurisdiction
to set aside the restitution order imposed by the Missouri court. Wayne then filed
this appeal.
We agree with the district court that the challenge to the restitution order
Wayne raised in her motion was required to be brought on direct appeal in the
Eighth Circuit Court of Appeals. C.f. United States v. Serawop, 505 F.3d 1112,
1117 (10th Cir. 2007); United States v. Bernard, 351 F.3d 360, 361 (8th Cir.
2003); Satterfield v. Scibana, 275 F. App’x 808, 809 (10th Cir. 2008); United
States v. Satterfield, 218 F. App’x 794, 796 (10th Cir. 2007). Wayne’s arguments
to the contrary are fallacious. Although jurisdiction over Wayne’s term of
supervised release was transferred to the Colorado district court pursuant to 18
U.S.C. § 3605, Wayne has failed to identify any statute conferring jurisdiction on
the Colorado court to decide the merits of the issue raised in her motion.
For substantially the same reasons relied upon by the district court, we
conclude Wayne’s appeal is legally frivolous. Accordingly, Wayne’s motion to
proceed in forma pauperis on appeal is denied and she is ordered to make
immediate payment of the unpaid balance of her appellate filing fee. The
Government’s motion to dismiss the appeal is granted and the appeal is
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dismissed. See 28 U.S.C. § 1915(e)(2)(B)(i). Wayne’s motion to strike the
Government’s motion to dismiss for lack of jurisdiction is denied.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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