United States v. Theresa Mubang ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7067
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THERESA SIRRI MUBANG,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:01-cr-00252-LMB-1)
Submitted: September 30, 2013 Decided: October 9, 2013
Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Theresa Sirri Mubang, Appellant Pro Se. Steve Alan Linick,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Theresa Mubang appeals a district court order denying
her motion to modify restitution payments and her motion to
vacate the restitution order. We affirm in part, vacate in part
and remand.
In her motion to modify, Mubang was seeking a district
court order directing the Bureau of Prisons to modify the
payment schedule under the Inmate Financial Responsibility
Program. Because Mubang was challenging the execution of her
sentence, such a request should have been made in a 28 U.S.C.A.
§ 2241 (West 2006 & Supp. 2013) petition. See United States v.
Diggs, 578 F.3d 318, 319 (5th Cir. 2009). Because Mubang is
currently incarcerated at the SFF Hazelton in the Northern
District of West Virginia, the district court in this instance
did not have jurisdiction to entertain the request to modify the
payment schedule because a § 2241 petition must be filed in the
district of incarceration. See 28 U.S.C.A. § 2241(a); In re
Jones, 226 F.3d 328, 332 (4th Cir. 2000). However, a district
court must “if it is in the interest of justice, transfer [the
petition] . . . to any other such court in which [it] could have
been brought at the time it was filed[.]” 28 U.S.C. § 1631
(2006).
Accordingly, we vacate that part of the order denying
Mubang’s motion to modify and remand for the district court to
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determine whether transferring Mubang’s motion to modify to the
proper federal district court would serve the interests of
justice, see 28 U.S.C. § 1631, or whether the action is more
appropriately dismissed without prejudice to allow Mubang to
file her action in the appropriate district court.
Because Mubang did not establish any reason to grant
her motion to vacate the order of restitution, we affirm for the
reasons cited by the district court. United States v. Mubang,
No. 1:01-cr-00252-LMB-1 (E.D. Va. June 14, 2013).
Accordingly, we affirm that part of the district
court’s order denying the motion to vacate and we vacate that
part of the order denying the motion to modify and remand for
further consideration by the district court in accordance with
this opinion. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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