United States v. Alevras , 114 F. App'x 488 ( 2004 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Non-Precedential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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    Recommended Citation
    "USA v. Alevras" (2004). 2004 Decisions. Paper 145.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2004/145
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 03-3771
    ____________
    UNITED STATES OF AMERICA
    v.
    CHRIS G. ALEVRAS,
    Appellant
    ____________
    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        )
    ____________
    OPINION OF THE COURT
    ____________
    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.
    ________________________
    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
    

Document Info

Docket Number: 03-3771

Citation Numbers: 114 F. App'x 488

Filed Date: 11/5/2004

Precedential Status: Non-Precedential

Modified Date: 1/12/2023