UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PHILIP ANDRA GRIGSBY, Defendant - Appellant. No. 15-3022 (D.C. No. 6:12-CR-10174-JTM-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, HOLMES and PHILLIPS , Circuit Judges.

________________ _________________ Appellant Philip Andra Grigsby challenge s the district court’s rulings on a number of post-conviction motions. We lack jurisdiction to hear the appeal of some motions, but affirm the district court’s decisi on on the others.
I Mr. Grigsby was convicted in the distri ct court based on hi s guilty plea to the sexual exploitation of his mi nor daughter, possession of child pornography, and being a felon in possession of a fi rearm. The district court sentenced him to 260 years’

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 29, 2015
Elisabeth A. Shumaker Clerk of Court2 imprisonment, supervised release, and forfe iture of certain property, but deferred a ruling on victim restitution to allow for an ev identiary hearing. On direct appeal to this court, Mr. Grigsby cha llenged only the reasonableness of his sentence, which we affirmed. United States v. Grigsby (Grigsby I) , 749 F.3d 908 (10th Cir. 2014). In disposing of the appeal, we declined to recount the “heinous facts underlying [his] convictions,” other than to point out his sentence was enhanced, in part, because his crime involved his nine-year-o ld daughter and “material th at portrayed sadistic or masochistic conduct.” Id . at 909 n.2. While Mr. Grigsby’s direct appeal was pending, the district court held the restitution hearing and entered an am ended judgment awarding $140,000 in
restitution to the minor victim and her mother (Mr. Grigsby’s wife). Mr. Grigsby did not appeal the amended judgment, instead filing multiple motions in his criminal case. Relevant here, he file d a motion to modify the restit ution order based in part on his pending divorce from the victim’s mother. The district court denied this motion and others, noting that Mr. Grigsby’s dir ect appeal was still pending and concluding that it retained only limited jurisdicti on to modify a restitution order based on a material change in a defe ndant’s economic circumstan ces, which, in its view, Mr. Grigsby had not established. The dist rict court denied Mr. Grigsby’s resulting motion to reconsider and he appealed. We reversed in part and remanded for an expedited hearing on Mr. Grigsby’s moti on for modification of the restitution judgment. United States v. Grigsby (Grigsby II) , 579 F. App’x 680 (10th Cir. 2014).3 The government then filed an applicat ion under the Federa l Debt Collection Practices Act for a writ of garnishment ag ainst Mr. Grigsby’s re tirement account to enforce the restitution judgment. Mr. Grig sby then filed the following motions that form the subject matter of this appeal: (1) a motion to modify supervised release; (2) a motion to modify the Presentence Investigation Report (PSR); (3) a motion to restructure the restitution order; (4) objecti ons to the writ of garnishment filed by the government against the retir ement account; (5) a request for appointment of counsel; and (6) a request for a writ of mandamu s requiring the use of particular mailing procedures. The district court held a hearing and later entered an order on February 4, 2015, suspending “ruling on [M r. Grigsby’s] request to modify the restitution awarded for 30 days ” and denying the remaining motions. R. at 244. Mr. Grigsby then appealed. Regardless, th e district court entered an order denying the request to modify restitution on March 10. Mr. Grigsby did not file a new or amended notice of appeal.
II As an initial matter, not a ll of the issues Mr. Grigsby raises have been resolved by the district court. Becau se the district court defe rred ruling on Mr. Grigsby’s remanded request to modify the restitution judgment for 30 days, the restitution issue did not result in a final appealable deci sion until the March 10 or der was entered.
See McClendon v. City of Albuquerque , 630 F.3d 1288, 1292 (10th Cir. 2011) (“A final decision is . . . one by which the dist rict court disassociat es itself from a case” (internal quotation marks omitted)). It is unclear whether Mr. Grigsby is attempting4 to challenge the district court’s refusal to modify restitution following remand by this court. Though Mr. Grigsby discusses the pr ocedural history of the restitution issue in his brief, he does not challenge the merits of the March 10 order. An appellant’s opening brief can be considered the functional equivalent of a notice of appeal if it is timely under Fed. R. App. P. 4 and convey s the information required by Fed. R. App.
P. 3. Smith v. Barry , 502 U.S. 244, 249 (19 92). But even if Mr. Grigsby’s opening brief, filed April 30, include d argument on restitution suffici ent to give notice of his intent to appeal that issu e as required by Fed. R. Ap p. P. 3, it would still not constitute a timely notice of a ppeal of the March 10 order. See Fed. R. App. P. 4(b)(1) (requiring a defendant’s notice of appeal be filed w ithin 14 days of the order being appealed). None of the other documen ts filed by Mr. Grigsby around this time satisfy Rule 3 or Rule 4 either. Thus, Mr. Grigsby has failed to file anything resembling a timely notice of appeal of the district court’s fina l adjudication of the restitution issue, leav ing us without jurisdiction to hear any challenge thereto. We also lack jurisdiction to consid er Mr. Grigsby’s appeal regarding garnishment and appointment of counsel. U nder 28 U.S.C. § 3205, the district court may enter a final disposition “o rder directing the garnishee as to the disposition of the judgment debtor’s nonexempt interest in such property” only after a writ of garnishment has been issued, the garnishee has responded, and, if requested, the court has conducted a hearing. § 3205(b)(7); accord United States v. Branham , 690 F.3d 633, 635 (5th Cir. 2012). The district c ourt here has yet to issue a final order directing the disposition of the property; it has merely conducte d a hearing and ruled5 on Mr. Grigsby’s objections. Indeed, the distri ct court expressly declined to enter the government’s proposed “Garni shee Order” because it belie ved it lacked jurisdiction in light of this pending appeal. Whether the district court’s belief is correct or not, it is clear that an additional “s tep remains to be taken before this matter becomes final and appealable.” Branham , 690 F.3d at 635. Likewise , Mr. Grigsby’s request for appointment of counsel, initi ally raised in his objecti ons to the government’s application for the writ of garnishment, is tethered to the ga rnishment proceedings and is not appealable until the underl ying civil proceedings are finalized. See Cotner
v. Mason , 657 F.2d 1390, 1392 ( 10th Cir. 1981) (holdi ng that orders denying appointment of counsel are not immediately appealable as of right). We are therefore unable to hear an appeal of either of these motions. Finally, Mr. Grigsby asked the district c ourt to issue a writ of mandamus to the clerk’s office, public defender, and gove rnment requiring the use of Bureau of Prisons mailing procedures. The distri ct court denied the request because Mr. Grigsby did not show extraordinary ci rcumstances for issui ng the writ. While Mr. Grigsby’s request could seemingly pert ain to concluded criminal matters and, thus, be immediately appealable, it appear s that the mailing procedures he seeks are in connection with the garnishment proceedi ngs, which, as described herein, have yet to be finalized. Mr. Grigsby has done nothing to demonstrate that we have jurisdiction over the district court’s denial of mandamus. Bending over backwards, the only basis to which Mr. Gr igsby could moor his interloc utory appeal, as we see it, is construction of the deni al of mandamus as a denial of injunctive relief. See Utah6 State Dep’t of Health v. Kennecott Corp ., 14 F.3d 1489, 1496 (10t h Cir. 1994) (citing Carson v. Am. Brands, Inc ., 450 U.S. 79, 84 (1981)) (cons truing 28 U.S.C. § 1292(a) to allow immediate appeal of a ruling that has the practical effect of denying or granting an injunction). To support jurisdicti on, the district court’s order must also be one that will result in serious or irrepa rable consequences. So. Ute Indian Tribe v.
Leavitt , 564 F.3d 1198, 1208 (10th Cir. 2009). Thus, even then, Mr. Grigsby would lose because he has not made a showing of irreparable harm. As the district court cogently noted, Mr. Grigs by has merely expressed a “ preference for certain mailing procedures” and has not shown that the ex isting mailing procedur es “have actually harmed [him] in any way,” R. at 250 (empha sis in original), much less harmed him irreparably.
III Only the district court’s denial of Mr. Grigsby’s motions to modify supervised release and the PSR remain. As a part of his supervised rele ase, Mr. Grigsby is prohibited from any contact with his minor children or thei r mother. He argues that his minor children desire communication with him and he is con cerned that denying them contact with their father when they wish it would ha ve an adverse effect on the therapy they currently receiv e. Mr. Grigsby also conte nds that denying them contact with their father during their teen years ca n lead to confusion and rebellion, and is thus not in the best interests of the child ren. As to the PSR, Mr. Grigsby maintains that the PSR is confusing and speculative so as to mislead BOP staff into classifying him “higher than [the] guidelines cal culate.” Opening Br. at 19.7 In Grigsby II , we previously declined to revers e the district c ourt’s denial of this proposed modification of supervised re lease. We conclude d that Mr. Grigsby’s motion was “woefully premature, given he only began serving his 260-year sentence in 2013, and he has not pr ovided any legitimate change in circumstance to support modifying the prohibition of contacting the minor victim, against whom he committed a multitude of abhorrent sexuall y-abusive acts, or any child for that
matter.” Grigsby II , 579 F. App’x at 686. Our analys is is still just as cogent. Mr. Grigsby is only one year further into his sentence than when we first rendered our conclusion, which is st ill “woefully premature.” See id . Furthermore, the only conceivable change in circumstance Mr. Gr igsby identifies is that his children are now teenagers, making them su sceptible to confusion and re bellion, which is directly undermined by the overwhelming probability that his children will have long left their adolescence behind by the time his supervised release even begins, if ever, to say nothing of the heinousness of his crim e. Thus, Mr. Grigsby has not identified any legitimate basis for modi fying his supervised release. The district court was correct to deny this motion. Likewise, the district cour t properly denied the moti on to modify the PSR. To begin with, Mr. Grigsby identifies no specific provision of the PSR in his brief before us or before the district court resulting in er ror in fact or in BO P interpretation. He merely argues that the BOP’s conclusions lack any basis in th e PSR. The district court found no misinterpreta tion and, regardless, that Mr. Grigsby’s challenge is untimely as the “errors” are “substantiv e in nature.” R. at 252 & n.1; see8 Fed. R. Crim. P. 32(f)(1) (providing 14 days to challenge the s ubstantive information in a PSR). To the extent that Mr. Grig sby objects to the substantive terms of the PSR, he is indeed too late. To the extent that he quarrels with the BOP’s reading of the PSR, he has not cited any authority for our ability to judicially intervene on this subject and we decline to ma ke such an argument for him. Accordingly, we reject such a contention. In sum, we lack jurisdicti on to hear this appeal as to the motion to restructure the restitution order, objections to the writ of garnishment, request for appointment of counsel, and denial of mandamus. We af firm the district court’s denial of Mr. Grigsby’s motion to modify supervised release and motion to modify the PSR. Mr. Grigsby’s remaining motions before us are denied.

Entered for the Court

Jerome A. Holmes Circuit Judge