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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20163

Summary Calendar

UNITED STATES OF AMERICA, 

Plaintiff - Appellee

v.

GRATINIANO TOVAR-VALENCIA, also known as Carlos Alberto RamirezHurtado, also known as Daniel Gonzalez Velazquez, also known as Grati,

Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:97-CR-168-1

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Gratiniano Tovar-Valencia, federal prisoner #19844-034, appeals the

district court’s dismissal without prejudice of his 18 U.S.C. § 3572(d)(3) motion

for modification of fine. For the following reasons, we AFFIRM the district

court’s dismissal.

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2010

Charles R. Fulbruge III

Clerk

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No. 09-20163

Anders v. California, 386 U.S. 738 (1967). 

1

 Section 3572(d)(3) provides as follows: 2

A judgment for a fine which permits payments in installments shall

include a requirement that the defendant will notify the court of any

material change in the defendant’s economic circumstances that might

affect the defendant’s ability to pay the fine. Upon receipt of such notice

the court may, on its own motion or the motion of any party, adjust the

payment schedule, or require immediate payment in full, as the interests

of justice require.

2

FACTS AND PROCEEDINGS

In 1998, Tovar-Valencia pleaded guilty to conspiracy to possess with intent

to distribute cocaine and conspiracy to commit money laundering. The district

court sentenced him to life imprisonment on the drug charge and to a concurrent

240-month term on the money laundering charge. The court also imposed a fine

of $25,000, to be paid “in full immediately.” Tovar-Valencia began paying his

fine in installments under the Federal Bureau of Prisons’s Inmate Financial

Responsibility Program (“IFRP”). 

This court dismissed Tovar-Valencia’s direct appeal as frivolous after

granting his counsel’s Anders motion. The district court dismissed Tovar- 1

Valencia’s first 28 U.S.C. § 2255 motion for lack of merit; this court denied a

COA and later denied leave to file a second or successive § 2255 motion. 

The instant appeal is the latest in a series of challenges Tovar-Valencia

has mounted against his fine and the manner in which he is paying it. His

motion asked the district court to remit or modify the fine pursuant to 18 U.S.C.

§ 3572(d)(3). In the motion, Tovar-Valencia contests the Bureau of Prisons’s use 2

of the IFRP to facilitate the payment of fines that are due “in full immediately.”

He argues that, pursuant to 18 U.S.C. § 3612(e), his failure to pay the fine

immediately put him in default, which should have triggered the collection

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No. 09-20163

3

procedures outlined in 18 U.S.C. §§ 3612, 3613, and 3613A. The government’s

failure to adhere to these procedures, he asserts, violates the Fifth Amendment

and forfeits its ability to collect the balance of the fine. Claiming that new

economic circumstances—including his alleged dismissal from a prison job due

to his immigration status—affect his ability to continue paying his fine, TovarValencia asked the district court to set a new payment schedule or remit the

remainder of the fine. He also asserted that he may attempt to recover the

amount he has already paid the government as illegally collected.

The district court dismissed Tovar-Valencia’s motion, without prejudice,

for lack of jurisdiction. It reasoned that the motion was a collateral attack on

the criminal judgment and should be treated as another successive § 2255

petition. The court denied Tovar-Valencia’s Rule 59 motion to alter or amend

the judgment, and this appeal followed. 

DISCUSSION

Tovar-Valencia’s fine is not of the type for which § 3572(d)(3) authorizes

relief. He does not challenge a “judgment for a fine which permits payments in

installments” as required under § 3572(d)(3)—the district court did not make

Tovar-Valencia’s fine payable in installments. See, e.g., United States v. Wynn,

328 F. App’x 826, 828 (3d Cir. 2009) (unpublished). His motion is more

accurately characterized as a challenge to the validity of his IFRP payment

plan—in other words, a challenge to the manner in which his sentence is being

executed, rather than a “claim[] relating to unlawful custody” cognizable under

28 U.S.C. § 2255. See United States v. Segler, 37 F.3d 1131, 1137 (5th Cir. 1994).

In Segler, this court explained that § 2255 was reserved for claims relating to

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unlawful custody and could not serve as the vehicle to challenge the imposition

of a fine. Id. at 1137-38. 

A properly stated claim of the sort Tovar-Valencia seeks to make requires

exhaustion of administrative remedies and must then be asserted, pursuant to

28 U.S.C. § 2241, in the district court in the district where he is incarcerated.

See United States v. Diggs, 578 F.3d 318, 319-20 (5th Cir. 2009). In Diggs, a

restitution case raising an analogous issue, we stressed that “[p]risoners cannot

use [18 U.S.C.] § 3664(k)”—the equivalent of § 3572(d)(3) in the restitution

context—“as a vehicle for a court not in the district of incarceration to modify or

suspend IFRP payments.” Id. at 320. 

This court can affirm the judgment of the district court on any basis

supported by the record. Bickford v. Int’l Speedway Corp., 654 F.2d 1028, 1031

(5th Cir. 1981). Although the district court incorrectly premised its dismissal

on the bar against second or successive § 2255 petitions, that dismissal was

nonetheless the proper result. 

CONCLUSION

The district court’s dismissal without prejudice is AFFIRMED.

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