2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-21-2010

Jose Gonzalez-Rivera v. Ronnie Holt

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3524

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3524

___________

JOSE GONZALEZ-RIVERA,

Appellant

v.

RONNIE HOLT, Warden and B.O.P.

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

D.C. Civil Action No. 09-cv-01341

(Honorable Edwin M. Kosik)

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 13, 2010

Before: SCIRICA, Chief Judge, JORDAN and STAPLETON, Circuit Judges.

(Filed January 21, 2010 )

___________

OPINION OF THE COURT

___________

PER CURIAM.

Jose Gonzalez-Rivera, a federal prisoner, appeals an order of the United States

District Court for the Middle District of Pennsylvania denying his habeas petition filed

pursuant to 28 U.S.C. § 2241. We will affirm.
2

Following a jury trial, Gonzalez-Rivera was convicted in the United States District

Court for the Eastern District of Pennsylvania of conspiracy to distribute in excess of five

kilograms of cocaine and related charges. In April 1993, he was sentenced to life

imprisonment and ordered to pay a special assessment of $250. See United States v.

Quintero, 38 F.3d 1317, 1320 n.1 (3d Cir. 1994). We upheld Gonzalez-Rivera’s

conviction, but remanded for resentencing. Id. at 1335, 1348. On November 7, 2000, the

District Court resentenced Gonzalez-Rivera to 36 years imprisonment and imposed five

years of supervised release, a special assessment of $50, and a fine of $750. GonzalezRivera appealed again and we affirmed the sentence and conviction. See United States v.

Gonzalez-Rivera, 29 Fed. Appx. 848 (3d Cir. 2002) (nonprecedential). His efforts to

obtain post-conviction relief have been unsuccessful.

In July 2009, Gonzalez-Rivera filed a § 2241 petition in the Middle District,

alleging that the Bureau of Prisons (“BOP”) improperly withdrew money from his inmate

account to pay the fine that was imposed as part of his criminal sentence. He also argued

that the sentencing court failed to consider the factors set forth in 18 U.S.C. § 3553(a) and

that the Sentencing Guidelines “do not take into account all of the considerations that are

now relevant to the . . . sentencing decision.” The District Court dismissed the petition,

concluding that the BOP had authority to set a payment schedule for criminal fines and

that Gonzalez-Rivera could not challenge his conviction under § 2241. Gonzalez-Rivera
 Subsequently, a petition for writ of certiorari was granted and the Supreme Court 1

vacated the judgment on a ground unrelated to the improper delegation issue. See Corley

v. United States, 129 S. Ct. 1558 (2009).

3

filed a timely motion for reconsideration, which the District Court denied. This appeal

followed.

Gonzalez-Rivera challenges the execution of his sentence by asserting that the

BOP “exceeded its authority” in establishing a payment schedule for the fine imposed by

the District Court. See 18 U.S.C. § 3572(d). This claim falls within the purview of a

§ 2241 petition. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001); Matheny v.

Morrison, 307 F.3d 709, 712 (8th Cir.2002) (stating that inmates’ challenges to payment

schedules set by BOP “concern the execution of sentence, and are therefore correctly

framed as § 2241 claims”). We have jurisdiction pursuant to 28 U.S.C. § 1291.

In support of his claim, Gonzalez-Rivera relied on United States v. Corley, 500

F.3d 210, 226-27 (3d Cir. 2007), where we held that, under the Mandatory Victims

Restitution Act (“MVRA”), a sentencing court impermissibly delegates its authority when

it orders immediate payment of restitution with knowledge that the defendant is

financially unable to make payment immediately. Corley is distinguishable, however, 1

because Gonzalez-Rivera is challenging a fine, not a restitution order.

The MVRA, which was applicable when Gonzalez-Rivera was resentenced in

2000, provides that “[a] person sentenced to pay a fine or other monetary penalty,

including restitution, shall make such payment immediately, unless . . . the court provides
 We recognize that Gonzalez-Rivera’s offenses pre-date the MVRA. In United States 2

v. Edwards, 162 F.3d 87, 91 (3d Cir. 1998), we held that retroactive imposition of

restitution under the MVRA violated the Ex Post Facto Clause. No Ex Post Facto

violation occurred here, however, because the enactment of § 3572(d)(1) did not increase

the punishment for Gonzalez-Rivera’s crime. 

 We also agree with the District Court that Gonzalez-Rivera’s sentencing claims are 3

not cognizable in a § 2241 petition. See Okereke v. United States, 307 F.3d 117, 120 (3d

Cir. 2002); In re Dorsainvil, 119 F.3d 245, 250 (3d Cir. 1997).

4

for payment on a date certain or in installments.” 18 U.S.C. § 3572(d)(1). With 2

restitution, the MVRA also mandates that the sentencing order include a payment

schedule in consideration of the defendant’s economic circumstances. See 18 U.S.C.

§ 3664(f)(2). Importantly, there is no analogous requirement for the imposition of fines. 

According to Gonzalez-Rivera’s § 2241 petition, the court at resentencing found that “the

defendant has the wherewithal to earn [the $750 fine] in prison work programs, and that

[it] is payable immediately.” The sentencing court’s order for immediate payment of the

fine was permissible. See United States v. Ellis, 522 F.3d 737, 738-39 (7th Cir. 2008) 3

(holding that sentencing court did not improperly delegate its authority when it ordered

that fine “[p]ayments are due immediately, . . . but may be paid from prison earnings in

compliance with the Inmate Financial Responsibility Program.”).

For the foregoing reasons, we will affirm the judgment of the District Court.