PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-7607

JEREMY FONTANEZ,

Petitioner - Appellant,

v.

TERRY O’BRIEN, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Wheeling. Frederick P. Stamp, 

Jr., Senior District Judge. (5:14-cv-00077-FPS-JSK)

Argued: October 27, 2015 Decided: December 2, 2015

Before MOTZ, GREGORY, and HARRIS, Circuit Judges.

Reversed and remanded by published opinion. Judge Harris wrote 

the opinion, in which Judge Motz and Judge Gregory joined.

ARGUED: Adam H. Farra, SIDLEY AUSTIN LLP, Washington, D.C., for 

Appellant. Tara Noel Tighe, OFFICE OF THE UNITED STATES 

ATTORNEY, Wheeling, West Virginia, for Appellee. ON BRIEF: 

Jonathan F. Cohn, SIDLEY AUSTIN LLP, Washington, D.C., for 

Appellant. William J. Ihlenfeld, II, United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, 

for Appellee.
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PAMELA HARRIS, Circuit Judge:

Jeremy Fontanez, a federal inmate, filed a habeas corpus 

petition under 28 U.S.C. § 2241 seeking release from the 

obligation to make restitution payments through the Bureau of 

Prisons’ Inmate Financial Responsibility Program. The district 

court found that Fontanez’s claim was not cognizable under 28

U.S.C. § 2241 and dismissed the case. We disagree. 

Accordingly, we reverse the district court’s order and remand 

the case for proceedings on the merits.

I.

A.

In 2004, Jeremy Fontanez pleaded guilty to his involvement

in a series of armed robberies and was sentenced to 420 months 

in prison in the Eastern District of Pennsylvania. The 

sentencing court imposed restitution in the amount of 

$27,972.61. It provided the following special instructions in 

the “schedule of payments” section of the sentencing order:

Defendant shall make restitution payments from any 

wages he may earn in prison in accordance with the 

Inmate Financial Responsibility Program. Restitution 

shall be due immediately.

J.A. 167. 

The Inmate Financial Responsibility Program (“IFRP”) is a 

Bureau of Prisons (“BOP”) program that enables prisoners to make
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scheduled payments from their inmate accounts toward courtordered financial obligations. See 28 C.F.R. § 545.10–11. 

Prison staff assist inmates in developing financial plans, which 

are subject to periodic review. Id. As the parties in this 

case agree, the IFRP is voluntary; the BOP cannot compel an 

inmate to make payments. See United States v. Boyd, 608 F.3d 

331, 334 (7th Cir. 2010). But inmates with financial 

obligations who refuse to participate in the IFRP may no longer 

be eligible for many privileges, including more desirable 

housing and work outside the prison. 28 C.F.R. § 545.11(d).

In April 2013, Fontanez was moved to the United States 

Penitentiary – Hazelton (“USP Hazelton”) in Bruceton Mills, West 

Virginia. He signed an Inmate Financial Plan, agreeing to pay 

$25 each quarter toward his court-ordered financial obligations

through the IFRP. About one year later, however, Fontanez filed 

a written request to be released from the IFRP. 

In the request, Fontanez argued that the BOP’s requirement 

that he make IFRP payments violated the Mandatory Victims

Restitution Act of 1996 (“MVRA”). The MVRA obligates a district 

court to “specify in [a] restitution order the manner in which, 

and the schedule according to which, the restitution is to be 

paid.” 18 U.S.C. § 3664(f)(2). Fontanez contended that the 

sentencing court had failed to set a schedule for his 

restitution payments and had instead unlawfully delegated its
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power to set that schedule to the BOP. Therefore, the BOP 

lacked any authority to require him to make restitution payments 

through the IFRP or to punish him for refusing to pay. 

Fontanez’s initial request was denied by a unit counselor 

on April 10, 2014. The request was denied a second time by the 

Warden of USP Hazelton, appellee Terry O’Brien (“the Warden”), 

on May 5, 2014. The Warden noted that the sentencing court had 

ordered Fontanez to “make restitution payments from any wages he 

may earn in prison in accordance with the [IFRP],” and he stated 

that “[t]he BOP does not have the authority to overrule the 

decision set forth by the Court.” J.A. 26. 

B.

In June 2014, proceeding pro se, Fontanez filed an 

application for a writ of habeas corpus under 28 U.S.C. § 2241 

in the Northern District of West Virginia. 

As a general matter, a federal prisoner must challenge the 

execution of a sentence under 28 U.S.C. § 2241, and the sentence 

itself under 28 U.S.C. § 2255. In re Vial, 115 F.3d 1192, 1194 

& n.5 (4th Cir. 1997). Relevant to this appeal, the § 2255

“savings clause” provides that prisoners may petition under §

2241 when § 2255 is “inadequate or ineffective” to address their 

claims. 28 U.S.C. § 2255(e).

Fontanez contended that § 2241 was the proper procedural 

vehicle for his claim because he was challenging the 
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“execution,” and not the validity, of his sentence. J.A. 5–6. 

He argued that the BOP had no authority to require him to make 

restitution payments through the IFRP because the sentencing 

court had failed to set forth a proper restitution order and 

schedule, in violation of the MVRA. He also alluded to a 

violation of his due process rights. He asked the district 

court to enjoin the BOP from requiring him to make further

payments through the IFRP. 

The Warden filed a motion to dismiss or, in the 

alternative, for summary judgment. The matter was referred to a 

magistrate judge, who issued a report recommending that the 

government’s motion be granted and Fontanez’s petition be 

denied. The district court adopted the magistrate judge’s 

report in full and dismissed the case. 

The court held that Fontanez was challenging his sentence 

“as imposed,” not as executed, and so could not bring his

petition directly under 28 U.S.C. § 2241. J.A. 83. The court 

also found that Fontanez’s claim was not cognizable under 28 

U.S.C. § 2255, either, because that provision could not be used 

to challenge solely the restitution portion of a sentence. 

Finally, the court determined that even if § 2255 were

“inadequate or ineffective” in this case, Fontanez could not 

resort to § 2241 under the “savings clause” because his claim 

was statutory, not constitutional, and because he did not allege 
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a “complete miscarriage of justice” or a proceeding 

“inconsistent with the rudimentary demands of fair procedure.” 

J.A. 84 (quoting United States v. Timmreck, 441 U.S. 780, 784

(1979)). Accordingly, the court dismissed Fontanez’s habeas 

corpus petition. 

This timely appeal followed.

II.

A.

We review the district court’s denial of habeas corpus 

relief de novo. Waddell v. Dep’t of Corr., 680 F.3d 384, 392 

(4th Cir. 2012). 

The district court denied Fontanez’s petition because it 

understood his claim to be a challenge to the validity of his 

sentencing order, and not to the execution of his sentence. For 

that reason, the court found that his claim was not directly 

cognizable under § 2241. But as Fontanez’s arguments have been

clarified on appeal, it is now apparent that he is indeed 

challenging the execution of his sentence by the BOP. 

Fontanez seeks relief from “the decision of the Bureau of 

Prisons to force him into the IFRP and its accompanying refusal 

to release him from it.” Reply Br. at 8. He contends that the 

BOP exceeded its authority and usurped a “‘core judicial 

function’” by setting “the basic terms of his restitution,” in 
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contravention of both the MVRA and the constitutional separation 

of powers. Opening Br. at 9–10 (quoting United States v. 

Miller, 77 F.3d 71, 78 (4th Cir. 1996)). And while a premise of 

Fontanez’s argument is that the sentencing order is invalid, he 

does not seek to have that order set aside. Instead, the claim 

on which he seeks relief is that the BOP’s execution of the 

restitution portion of his sentence is unlawful.

It is well established that “attacks on the execution of a 

sentence are properly raised in a § 2241 petition.” In re Vial, 

115 F.3d at 1194 n.5; see also United States v. Snow, 748 F.2d 

928, 933–34 (4th Cir. 1984); McGee v. Martinez, 627 F.3d 933, 

937 (3d Cir. 2010); United States v. Diggs, 578 F.3d 318, 319–20

(5th Cir. 2009); Matheny v. Morrison, 307 F.3d 709, 712 (8th 

Cir. 2002).

Moreover, other circuit courts have expressly held that an 

inmate’s challenge to the BOP’s administration of the IFRP 

relates to the “execution” of a sentence and is properly brought 

under § 2241. McGee, 627 F.3d at 937; Diggs, 578 F.3d at 319–

20; Matheny, 307 F.3d at 712. We have reached the same 

conclusion in unpublished opinions.

We now hold that an inmate’s challenge to the BOP’s 

administration of the IFRP is a challenge to the “execution” of 
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a sentence that is cognizable under 28 U.S.C. § 2241. 

Accordingly, we reverse the district court’s order.* 

Because the district court did not reach the merits of this 

case, we remand it for further proceedings. But we observe that

the distance between the parties appears to have narrowed as the 

issues have been refined on appeal. Fontanez challenges the 

Warden’s refusal to let him stop making payments through the 

IFRP. The Warden now takes the position that “the IFRP is a 

purely voluntary program” and that Fontanez “is entitled to stop 

participating at any time.” Response Br. at 13. We defer to 

the district court to determine in the first instance the extent 

to which it is necessary to reach the merits of this case. 

III.

We find that Fontanez’s claim is cognizable under 28 U.S.C. 

§ 2241 because he challenges the execution of his sentence. 

Accordingly, we reverse the district court’s order and remand 

for proceedings consistent with this opinion.

REVERSED AND REMANDED

 * For that reason, we do not address the remainder of the 

district court’s analysis under § 2255’s savings clause.