United States v. Wilbert

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 02-50239
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL ANDRE WILBERT,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
U.S.D.C. No. W-99-CR-91-1
_________________________________________________________________
October 21, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Darrell Andre Wilbert, federal prisoner #03001-180,
pleaded guilty to possession with intent to distribute crack
cocaine and was sentenced to 146 months’ imprisonment, five years
supervised release, and a $3,000 fine, with payment to begin
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
immediately. Wilbert filed the instant “Motion for Fine
Reassessment and Payment Plan,” asking the district court to
establish a payment plan for his $3,000 fine. He alleged that the
Bureau of Prisons (BOP) was requiring him to pay more per month
than he could afford. Wilbert appeals the district court’s denial
of this motion.
Wilbert did not challenge the legality of or the
imposition of his sentence in his motion in the district court.
His motion was limited to a request for the district court to set
up a payment plan for his fine. Any other arguments in his brief
are raised for the first time on appeal and will not be addressed.
See United States v. Madkins, 14 F.3d 277, 279 (5th Cir. 1994);
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999).
Wilbert’s motion challenged the manner in which the BOP
was administering the Inmate Financial Responsibility Program
(IFRP) in his case and asked the district court to set up a payment
plan. His motion did not explicitly attack any action by the
sentencing court. Wilbert’s motion is in the nature of a 28 U.S.C.
§ 2241 petition, and it should have been filed in the district of
his incarceration. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.
2000).
Accordingly, the district court’s order is VACATED and
this case is REMANDED with instructions that the district court
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enter an order dismissing Wilbert’s 28 U.S.C. § 2241 petition for
lack of subject matter jurisdiction.
VACATED and REMANDED.
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