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 challenges 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 decision on the others. 

I 

Mr. Grigsby was convicted in the district court based on his guilty plea to the 

sexual exploitation of his minor daughter, possession of child pornography, and being 

a felon in possession of a firearm. The district court sentenced him to 260 years’ 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive 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 Court
2 

imprisonment, supervised release, and forfeiture of certain property, but deferred a 

ruling on victim restitution to allow for an evidentiary hearing. On direct appeal to 

this court, Mr. Grigsby challenged 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-old daughter and “material that 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 amended 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 filed a motion to modify the restitution 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 direct appeal was still pending and concluding 

that it retained only limited jurisdiction to modify a restitution order based on a 

material change in a defendant’s economic circumstances, which, in its view, 

Mr. Grigsby had not established. The district 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 motion 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 application under the Federal Debt Collection 

Practices Act for a writ of garnishment against Mr. Grigsby’s retirement account to 

enforce the restitution judgment. Mr. Grigsby 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) objections to the writ of garnishment filed by the 

government against the retirement account; (5) a request for appointment of counsel; 

and (6) a request for a writ of mandamus 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 [Mr. Grigsby’s] request to modify the 

restitution awarded for 30 days” and denying the remaining motions. R. at 244. 

Mr. Grigsby then appealed. Regardless, the 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 all of the issues Mr. Grigsby raises have been resolved 

by the district court. Because the district court deferred 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 decision until the March 10 order was entered. 

See McClendon v. City of Albuquerque, 630 F.3d 1288, 1292 (10th Cir. 2011) (“A 

final decision is . . . one by which the district court disassociates itself from a case” 

(internal quotation marks omitted)). It is unclear whether Mr. Grigsby is attempting 
4 

to challenge the district court’s refusal to modify restitution following remand by this 

court. Though Mr. Grigsby discusses the procedural 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 conveys the information required by Fed. R. App. 

P. 3. Smith v. Barry, 502 U.S. 244, 249 (1992). But even if Mr. Grigsby’s opening 

brief, filed April 30, included argument on restitution sufficient to give notice of his 

intent to appeal that issue as required by Fed. R. App. P. 3, it would still not 

constitute a timely notice of appeal of the March 10 order. See Fed. R. App. P. 

4(b)(1) (requiring a defendant’s notice of appeal be filed within 14 days of the order 

being appealed). None of the other documents 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 final adjudication of the 

restitution issue, leaving us without jurisdiction to hear any challenge thereto. 

We also lack jurisdiction to consider Mr. Grigsby’s appeal regarding 

garnishment and appointment of counsel. Under 28 U.S.C. § 3205, the district court 

may enter a final disposition “order 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 court here has yet to issue a final order 

directing the disposition of the property; it has merely conducted a hearing and ruled 
5 

on Mr. Grigsby’s objections. Indeed, the district court expressly declined to enter the 

government’s proposed “Garnishee Order” because it believed 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 “step 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, initially raised in his objections to the government’s 

application for the writ of garnishment, is tethered to the garnishment proceedings 

and is not appealable until the underlying civil proceedings are finalized. See Cotner 

v. Mason, 657 F.2d 1390, 1392 (10th Cir. 1981) (holding 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 court to issue a writ of mandamus to the 

clerk’s office, public defender, and government requiring the use of Bureau of 

Prisons mailing procedures. The district court denied the request because 

Mr. Grigsby did not show extraordinary circumstances for issuing the writ. While 

Mr. Grigsby’s request could seemingly pertain to concluded criminal matters and, 

thus, be immediately appealable, it appears that the mailing procedures he seeks are 

in connection with the garnishment proceedings, 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. Grigsby could moor his interlocutory appeal, as we see it, 

is construction of the denial of mandamus as a denial of injunctive relief. See Utah 
6 

State Dep’t of Health v. Kennecott Corp., 14 F.3d 1489, 1496 (10th Cir. 1994) (citing 

Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)) (construing 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 jurisdiction, the district court’s order must also 

be one that will result in serious or irreparable 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. Grigsby has merely expressed a “preference for certain mailing 

procedures” and has not shown that the existing mailing procedures “have actually 

harmed [him] in any way,” R. at 250 (emphasis 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 release, Mr. Grigsby is 

prohibited from any contact with his minor children or their mother. He argues that 

his minor children desire communication with him and he is concerned that denying 

them contact with their father when they wish it would have an adverse effect on the 

therapy they currently receive. Mr. Grigsby also contends that denying them contact 

with their father during their teen years can lead to confusion and rebellion, and is 

thus not in the best interests of the children. 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 calculate.” Opening Br. at 19. 
7 

In Grigsby II, we previously declined to reverse the district court’s denial of 

this proposed modification of supervised release. We concluded that Mr. Grigsby’s 

motion was “woefully premature, given he only began serving his 260-year sentence 

in 2013, and he has not provided any legitimate change in circumstance to support 

modifying the prohibition of contacting the minor victim, against whom he 

committed a multitude of abhorrent sexually-abusive acts, or any child for that 

matter.” Grigsby II, 579 F. App’x at 686. Our analysis is still just as cogent. 

Mr. Grigsby is only one year further into his sentence than when we first rendered 

our conclusion, which is still “woefully premature.” See id. Furthermore, the only 

conceivable change in circumstance Mr. Grigsby identifies is that his children are 

now teenagers, making them susceptible to confusion and rebellion, 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 crime. Thus, Mr. Grigsby has not identified 

any legitimate basis for modifying his supervised release. The district court was 

correct to deny this motion. 

Likewise, the district court properly denied the motion 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 error in fact or in BOP interpretation. He 

merely argues that the BOP’s conclusions lack any basis in the PSR. The district 

court found no misinterpretation and, regardless, that Mr. Grigsby’s challenge is 

untimely as the “errors” are “substantive in nature.” R. at 252 & n.1; see
8 

Fed. R. Crim. P. 32(f)(1) (providing 14 days to challenge the substantive information 

in a PSR). To the extent that Mr. Grigsby 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 make such an argument for him. Accordingly, we reject 

such a contention. 

In sum, we lack jurisdiction 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 affirm 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