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United States v. Garland Miller , 546 F. App'x 335 ( 2013 )


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  •      Case: 12-30721       Document: 00512214645         Page: 1     Date Filed: 04/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
April 19, 2013
No. 12-30721
Summary Calendar                        Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GARLAND D. MILLER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:07-CR-50032-1
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Garland D. Miller, former federal prisoner # 13658-035, was convicted by
a jury of two counts of tax evasion, a violation of
    26 U.S.C. § 7201
    . United States
v. Miller,
    588 F.3d 897
    , 900 (5th Cir. 2009). He was sentenced to 48 months of
imprisonment and to three years of supervised release.
    Id. at 903
    . Miller
appeals the district court’s denial of his “Petition for Writ of Error Coram Nobis
or in the Alternative Motion to Amend Judgment Pursuant to FED R. CIV. P. 60,”
which he filed seeking to challenge the portion of his criminal judgment ordering
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-30721     Document: 00512214645      Page: 2   Date Filed: 04/19/2013
No. 12-30721
him to pay restitution to Desoto Regional Health System (DRHS). Miller
contends that the restitution order was equivalent to a conviction for
embezzlement and, as a result, the U.S. Department of Health and Human
Services (HHS) has excluded him “from certain health care and billing practices
and thereby depriving him of his livelihood.” Miller requests to have the
restitution order vacated via the writ of coram nobis or amended pursuant to
Federal Rule of Civil Procedure 60.
Although Miller was released from the Bureau of Prisons on December 30,
2011, he is still serving a three-year term of supervised release. Thus, Miller
does not satisfy the “no longer in custody” requirement for filing a writ of coram
nobis. See United States v. Hatten,
    167 F.3d 884
    , 887 n.6 (5th Cir. 1999); United
States v. Dyer,
    136 F.3d 417
    , 422 (5th Cir. 1998); see also Pack v. Yusuff,
    218 F.3d 448
    , 454 n.5 (5th Cir. 2000) (stating that “custody” for purposes of
    28 U.S.C. §§ 2255
     and 2241 encompasses supervised release). As such, the district court
did not abuse its discretion in denying Miller a writ. See Santos-Sanchez v.
United States,
    548 F.3d 327
    , 330 (5th Cir. 2008), vacated on other grounds,
    130 S. Ct. 2340
     (2010); see also Sojourner T v. Edwards,
    974 F.2d 27
    , 30 (5th Cir.
1992) (holding that this court may affirm the district court’s judgment on any
grounds supported by the record). Additionally, Miller has not shown that the
district court erred in finding that his request to amend the restitution order in
his criminal judgment was not cognizable pursuant to Rule 60, nor does he cite
any authority to support his request to enjoin HHS from excluding him “from
certain health care and billing practices and thereby depriving him of his
livelihood.” Accordingly, the judgment of the district court is AFFIRMED.
2