United States v. Lallemand, Sienky , 207 F. App'x 665 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2006*
Decided November 29, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3071
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 00-CR-143
SIENKY LALLEMAND,
Defendant-Appellant. Charles R. Norgle, Sr.,
Judge.
ORDER
Sienky Lallemand was sentenced to life in prison and ordered to pay
$141,942 in restitution after pleading guilty to charges arising from his role in
committing identity theft and then killing the victim of his fraud. Lallemand filed
but then dismissed a direct appeal from his convictions and sentence. He then
waited more than a year before writing the district court requesting that the
*
After examining 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).
No. 06-3071 Page 2
restitution order be terminated based on his purported inability to pay. Lallemand
sent several more submissions to the court, including one labeled “Motion to Serve a
Supplemental Pleading and Affidavit of Specific Negative Averment,” in which he
argues that the sentencing court lacked jurisdiction to enter the restitution order
because of his “standing at law as a Sovereign.” In that same document he also
argues that the order is “void for vagueness” because the United States and the
Office of the United States Attorney are “fictional agencies.” The district court
ordered the government to respond, but it failed to do so until after the court had
extended the deadline three times on its own motion. The court construed
Lallemand’s collective submissions as a motion to terminate the restitution order
and denied it on the merits.
On appeal Lallemand argues that the district court should have terminated
the restitution order because the government was dilatory in responding and then
ignored his specific arguments when it finally did respond. The government’s
delays aside, we note that the district court lacked jurisdiction to terminate the
restitution order. Absent a specific statute or rule, a district court lacks jurisdiction
to revisit a sentence. United States v. Goode, 342 F.3d 741, 743 (7th Cir. 2003). It
was too late for Lallemand to seek correction of the restitution order under Federal
Rule of Criminal Procedure 35(a). See Fed. R. Crim. Proc. 35(a) (stating that court
may correct clear error in sentence within seven days after sentencing). Nor could
he seek review under 28 U.S.C. § 2255. Barnickel v. United States, 113 F.3d 704,
706 (7th Cir. 1997) (holding that challenge to restitution component of sentence is
not cognizable on collateral review because order to pay restitution does not
constitute “custody”). And, moreover, Lallemand was not seeking modification of
the restitution order under 18 U.S.C. § 3664(k), which authorizes adjustment, but
not termination, of a restitution payment schedule based on a “material change in
the defendant’s economic circumstances.” See id. Lallemand sought outright
termination of his restitution obligation, not simply a change in the timing of
collection. If Lallemand wanted to contest the validity of the restitution order, he
should have done so on direct appeal.
Accordingly, the judgment of the district court is MODIFIED to reflect that
Lallemand’s motion was dismissed for lack of subject matter jurisdiction and, as
modified, is AFFIRMED.