United States v. Alevras ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-5-2004
USA v. Alevras
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3771
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"USA v. Alevras" (2004). 2004 Decisions. Paper 145.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 03-3771
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UNITED STATES OF AMERICA
v.
CHRIS G. ALEVRAS,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 97-cr-00099)
District Judge: Honorable Joseph A. Greenaway, Jr.
____________
Submitted Under Third Circuit LAR 34.1(a)
October 29, 2004
Before: SCIRICA, Chief Judge, FISHER and GREENBERG, Circuit Judges.
(Filed November 5, 2004 )
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OPINION OF THE COURT
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FISHER, Circuit Judge.
As we write for the parties only, we recite only those facts pertinent to our
disposition of this appeal. In 1997, appellant – who is a law school graduate but has
never been licensed to practice law in any state – pled guilty to bank fraud, false claims,
and possession of a firearm by a convicted felon. In a pro se motion filed six years later,
he sought to challenge his conditions of supervised release pursuant to 18 U.S.C. §
3583(e)(2) and Fed. R. Crim. P. 32.1. The district court denied the motion.
On appeal, appellant only challenges the legality of certain conditions of
supervised release. Rule 32.1, however, is an inappropriate vehicle to challenge the
legality of supervised release. See United States v. Kress, 944 F.2d 155, 158 n.4 (3d Cir.
1991). Even if construed as a Rule 35 motion, any such motion would be untimely. See
id. (construing pro se motion under Rule 32.1 precursor as Rule 35 motion); Fed. R.
Crim. P. 35(a) (“Within 7 days after sentencing, the court may correct a sentence that
resulted from arithmetical, technical, or other clear error.”). Similarly, federal courts lack
jurisdiction to entertain challenges to the legality of release conditions under section
3583(e)(2); such arguments should be raised on direct appeal, through 28 U.S.C. § 2255,
or by timely motion under Rule 35(a). See United States v. Hatten, 167 F.3d 884, 886
(5th Cir. 1999); United States v. Lussier, 104 F.3d 32, 36-37 (2d Cir. 1997).
To the extent appellant challenged the legality of his conditions of release, the
district court lacked jurisdiction. To the extent appellant sought genuine modification
rather challenging the legality of his conditions of supervised release, the district court
had jurisdiction and did not abuse its discretion in refusing to grant a hearing.1 Finally,
1
Normally, where the district court lacks jurisdiction to decide on the merits a
challenge to the legality of conditions of release, we would vacate and remand for
jurisdictional dismissal. But before the district court, appellant also sought modification
2
we find baseless appellant’s suggestion that the district judge should be recused on
remand because he allegedly took too long to decide the motion, and then allegedly
decided it too quickly after appellant wrote the judge to complain that it was taking too
long for the motion’s disposition. In any case, the matter is moot as no remand is
required.
The judgment of the district court will be AFFIRMED.
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to clarify the meaning of “dangerous devices” and “destructive devices,” an issue over
which the district court properly exercised jurisdiction. See Lussier, 104 F.3d at 35(section 3583(e)(2) authorizes modification when it serves general punishment goals).
Appellant has abandoned this issue on appeal. But the existence of this issue before the
district court gave the court jurisdiction to issue a judgment; therefore, rather than
vacating the judgment and remanding for dismissal, we will affirm.
3
4