Nonahal, Mohammed A. v. United States ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3942
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MOHAMMED ALI NONAHAL,
Defendant-Appellant.
__________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 96 CR 196—J.P. Stadtmueller, Judge.
__________
Œ
SUBMITTED APRIL 29, 2003 —DECIDED JULY 28, 2003
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Before COFFEY, RIPPLE and DIANE P. WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Burdened by student-loan debt,
Mohammed Ali Nonahal and several friends attempted to
counterfeit United States currency, first on a home printing
press and later at their local Kinko’s. All six would-be
counterfeiters ultimately pleaded guilty to conspiracy, see 18
Œ
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is
submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
2 No. 02-3942
U.S.C. §§ 371, 471. Mr. Nonahal served 31 months in prison
and is currently serving a three-year term of supervised
release. He would like now to move to Pakistan to attend
dentistry school, but the terms of his supervised release
prohibit that move. He therefore petitioned the district court
to modify the conditions in order to facilitate his relocation
from California to Pakistan. The court denied his motion
without explanation. Mr. Nonahal now appeals. For the
following reasons, we affirm the judgment of the district
court.
I
BACKGROUND
Although Mr. Nonahal is currently living in the Central
District of California and reporting to a probation officer
there, the sentencing court in the Eastern District of Wiscon-
sin has retained jurisdiction over him. His term of super-
vised release is scheduled to end in October 2003. One
condition of that release is that Mr. Nonahal cannot leave
the Central District of California without permission from
the California probation officer or the court in Wisconsin.
Another condition is that he report to his probation officer
in person each month. In July 2002, with the assistance of
counsel, Mr. Nonahal filed a motion requesting that the
sentencing court rescind those conditions. Before the
counterfeiting scheme, Mr. Nonahal had been studying
dentistry at Marquette University but was dismissed for
academic reasons. Because the dismissal prevented him
from gaining entry to another dental school in the United
States, he sought admission to an overseas program. In his
petition, Mr. Nonahal alleged that he has been admitted to
a dental school in Karachi, Pakistan, where he hoped to start
classes in September 2002. Mr. Nonahal suggested that,
No. 02-3942 3
instead of reporting to his probation officer in person each
month, he could send a report by mail.
The Government opposed Mr. Nonahal’s motion, arguing
that the proposed modifications would terminate effectively
his supervised release by placing him beyond the reach of
meaningful supervision. The Government suggested that
Mr. Nonahal could resume his studies after his supervised
release expired. Mr. Nonahal replied that he could not wait;
he hoped to eventually practice dentistry in California and,
in order to do so, had to complete his last year of studies
and sit for the January 2004 California dental licensing
exam.
The district court denied his motion without explanation
on August 23, 2002. Mr. Nonahal did not appeal that deci-
sion. Instead, now proceeding pro se, he moved for reconsid-
eration in the district court, essentially reasserting his
original argument that he had to travel to Pakistan immedi-
ately to begin school. The court denied this motion as well,
again without explanation. Mr. Nonahal then filed this
appeal; his notice of appeal was filed outside the ten-day
window as the counting rules then worked, see Fed. R. App.
P. 4(b)(1)(A); Fed. R. App. P. 26(a)(2) (amended in December
2002 to exclude weekends and holidays when counting the
ten days); United States v. Lilly, 206 F.3d 756, 762-63 (7th Cir.
2000) (appeal from ruling on petition for clarification of
conditions of supervised release is criminal in nature), but
the district court allowed the late filing, see Fed. R. App. P.
4(b)(4).
II
DISCUSSION
As an initial matter, the Government suggests in its brief
that this case is moot because Mr. Nonahal asserted that he
4 No. 02-3942
must complete his final year of dental school by January 1,
2004, and there is no longer sufficient time for him to do so.
However, Mr. Nonahal was asking for a modification of the
conditions of his supervised release, not for permission to
attend dental school. Because the travel restriction and the
requirement that Mr. Nonahal personally meet with his
probation officer currently remain in force, his request to
modify those conditions is not moot. It is true that
Mr. Nonahal’s reason for seeking the modification may no
longer be pressing, but the conditions are still impeding his
travel. Cf. Church of Scientology v. United States, 506 U.S. 9, 13
(1992) (even if it is too late to provide a fully satisfactory
remedy, case is not moot when partial remedy is available).
Another threshold matter is Mr. Nonahal’s contention that
the district judge who rejected his petition had a conflict of
interest because the judge had graduated from Marquette
University Law School and Mr. Nonahal had been dis-
missed from Marquette’s dental program. Such general
assertions of partiality are governed by 28 U.S.C. § 455(a),
which requires that a party move for recusal first in the
district court and then seek immediate review if the motion
is denied. See United States v. Mansoori, 304 F.3d 635, 667 (7th
Cir. 2002), cert. denied, 123 S. Ct. 1761 (2003); United States
v. Smith, 210 F.3d 760, 764 (7th Cir. 2000). Mr. Nonahal
did not follow that procedure; his challenge therefore is
waived. See Smith, 210 F.3d at 764. In any event, the argu-
ment that the district judge’s status as a Marquette Uni-
versity Law School alumnus would have prejudiced his
view of Mr. Nonahal’s motion is frivolous.
Turning to the merits, Mr. Nonahal emphasizes the
urgency of his desire to complete his education in Pakistan.
But he makes no real effort to explain how the district court
abused its discretion in refusing to modify his supervised
release conditions, see United States v. Sines, 303 F.3d 793, 800
(7th Cir. 2002) (applying abuse of discretion standard on
No. 02-3942 5
direct review of supervised release conditions), and instead
rests on poorly developed assertions, without citations to
authority, that the court erred. We have dismissed pro se
litigants’ appeals for similar noncompliance with Federal
Rule of Appellate Procedure 28(a)(9). See, e.g., Anderson v.
Hardman, 241 F.3d 544, 545-46 (7th Cir. 2001). Nevertheless,
we have considered the issues that we can discern from Mr.
Nonahal’s brief and have found no indication that the court
1
abused its discretion in denying Mr. Nonahal’s motion.
First, Mr. Nonahal asserts that the court failed to rec-
ognize the importance of education to his rehabilitation
when it refused to modify his conditions. A sentencing
court retains jurisdiction to modify or revoke supervised
release after considering enumerated factors. See 18 U.S.C.
§§ 3583(e), 3553; see also United States v. Monteiro, 270 F.3d
465, 472 (7th Cir. 2001). The list of enumerated factors
includes “the need for the sentence imposed . . . to provide
the defendant with needed education or vocational train-
ing.” 18 U.S.C. § 3553(a)(2)(d). The district court did not
abuse its discretion in prioritizing the need to continue
close supervision of Mr. Nonahal over the benefits he might
receive from continuing his education.
Mr. Nonahal also suggests that the court denied his
petition with no testimony or trial. Federal Rule of Criminal
Procedure 32.1(c) requires the court to hold a hearing, with
1
Mr. Nonahal includes several additional assertions of error in
his reply brief. Most of them relate to his underlying conviction
and sentence, which are no longer subject to review. See United
States v. Thomas, 934 F.2d 840, 846 (7th Cir. 1991) (probation
revocation hearing inappropriate forum to challenge underlying
conviction). The new arguments that do relate to the motion to
modify are waived because they are raised for the first time in a
reply brief. APS Sports Collectibles, Inc. v. Sports Time, Inc., 299
F.3d 624, 631 (7th Cir. 2002).
6 No. 02-3942
exceptions, “[b]efore modifying the conditions of probation
or supervised release.” Fed. R. Crim. P. 32.1(c) (emphasis
added). But the rule does not compel the court to hold a
hearing before refusing a request for modification. Mr.
Nonahal has not provided any support for his position that
a court must hold a hearing before denying a request for
modification.
Finally, Mr. Nonahal submits that the district court should
have held a hearing before denying his petition “with no
comments . . . or ground for denial.” Appellant’s Br. at 9
n.1. We do expect district courts to provide some expla-
nation for their decisions. See 7th Cir. R. 50. In addition to
other benefits, a statement of reasons from the district
court facilitates meaningful review. W. States Ins. Co. v.
Wis. Wholesale Tire, Inc., 148 F.3d 756, 758 (7th Cir. 1998);
Sims v. Lucas, 9 F.3d 1293, 1294 (7th Cir. 1993). Although
a remand is sometimes warranted when a district court
fails to provide such an explanation, in this case a remand
is unnecessary because the district court’s reasons for
denying the modification are apparent. Ross Bros. Constr.
Co. v. Int’l Steel, 283 F.3d 867, 872 (7th Cir. 2002). As the
Government observes, to allow Mr. Nonahal to relocate
to Pakistan, far outside of the oversight of his probation
officer, is antithetical to the concept of supervised release
and would effectively constitute a premature end of the
supervision term.
Conclusion
For the reasons set forth in this opinion, the judgment of
the district court is affirmed.
AFFIRMED
No. 02-3942 7
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-28-03