# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted March 12, 2021 *

Decided March 15, 2021

Before

WILLIAM J. BAUER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 20-2020

UNITED STATES OF AMERICA, Plaintiff-Appellee

,

v

.

PAO HUE YENG XIONG, Defendant-Appellant. Appeal from the United States District
Court for the Eastern District of Wisconsin.

No. 07-CR-112

William C. Griesbach, J udge

.

O R D E R

Pao Xiong, while still a federal inmate, as ked his sentencing judge in the Eastern District of Wisconsin to “modify” his supervis ed release by allowing him to serve it in
the Northern District of Texas so that he could live with his fiancée and her children. The court denied the request and then denied Xiong’s motion to reconsider. Xiong timely appealed only the second ruling. Be cause the court did not abuse its discretion by adhering to its original decision, we affirm.

* We have agreed to decide the case wi thout oral argument because the briefs and record adequately present the facts and le gal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION
To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 20-2020 Page 2

A jury in the Eastern District of Wi sconsin found Xiong guilty of arson, mail fraud, witness tampering, and making a fals e statement. The district court sentenced him to 180 months in prison and three ye ars’ supervised release. One standard condition of supervised release prohibited Xiong from leaving the Eastern District of Wisconsin without permission of th e court or his probation officer. See U.S.S.G. § 5D1.3(c)(3). Xiong appealed but did not challe nge any aspect of his sentence, including supervised release; we affirmed his conviction. See United States v. Xiong

, 595 F.3d 697 (7th Cir. 2010).

While in prison, Xiong became engaged to marry a woman who lives in Texas. So he began asking to serve his supervis ed-release term there. In March 2019, the probation office in the Northern District of Texas denied Xiong’s request for a transfer of supervision but told him it would reconsider if he complied with his release conditions for six months. Xiong also sought relief in the Northern District of Texas; that court denied his petition under 28 U.S.C. § 2241 for lack of jurisdiction. See Xiong v. United States , No. 4:20-CV-285-O (N.D. Tex. March 31, 2020).

Xiong then asked the district court in Wi sconsin to modify his release conditions under 18 U.S.C. § 3583 to allow him to live in Texas, arguing that not doing so would violate his constitutional right to familial a ssociation. The court denied the motion along with Xiong’s two requests for an expedite d decision. It questioned whether, under 18 U.S.C. § 3605, it could transfer jurisdiction over Xiong to another judicial district before his supervised-release term began. In any event, the court explained, it could order the transfer only if the receivin g court agreed to it, and it had not. See § 3605. Xiong then filed a “Motion to Alter and/or Ame nd” the ruling, in which he insisted that
he was entitled to live in Texas with his fiancée and her children. The district court summarily denied that motion in a minute entry. Xiong left prison in December 2020.

On appeal, Xiong contends that the distri ct court erred in denying his original motion and his motion to “Alter and/or Amend.” But we limit our review to the denial
of the second motion. See United States v. Xiong , No. 20-2020 (7th Cir. Aug. 5, 2020). Xiong missed the 14-day deadline to file a notice of appeal or move for reconsideration of the order denying his transfer request. See F ED

. R. A PP

. P. 4(b)(1)(A); United States v. Rollins , 607 F.3d 500, 502 (7th Cir. 2010). So the “Motion to Alter and/or Amend” did not toll the time for taking an appeal from the or iginal ruling, and his notice of appeal is timely only with respect to the denial of his second motion. See F ED

. R. A PP

. P. 4(b)(1)(A); United States v. Redd , 630 F.3d 649, 650 (7th Cir. 2011).No. 20-2020 Page 3

Xiong argues that his motion was brou ght under 18 U.S.C. § 3583(e)(2), which allows the modification of supervised-release conditions “at any time,” but the district court erroneously considered it under the transfer statute, see id. § 3605. We disagree. As the district court recognized, Xiong’s reques t implicated the jurisdiction of the court over his person, which, for a supervisee, is initially with the court “imposing a
sentence.” Id. Only a transfer could divest the Eastern District of Wisconsin of jurisdiction. But Xiong was not a person “on supervised release,” id. , while he was still
incarcerated. See 18 U.S.C. § 3424(e); United States v. Johnson , 529 U.S. 53, 57 (2000). Therefore, the district court coul d not yet transfer jurisdiction. See 18 U.S.C. § 3605; United States v. Bass , 233 F.3d 536, 537 (7th Cir. 2000). No thing in Xiong’s motion for reconsideration (also filed before his re lease) could have provided grounds for revisiting the denial of his request.

Even if we reviewed Xiong’s motion under the auspices of 18 U.S.C. § 3583(e)(2), we would not conclude that it was an abuse of discretion not to reconsider modifying his conditions of supervised release to permit him to live outside of Wisconsin. See United States v. Hook , 471 F.3d 766, 770 (7th Cir. 2006). Although the court denied reconsideration in summary fashion, we presum e that it stood on its original reasoning because Xiong’s motion for reconsideration wa s nearly identical to his original motion. See Sigsworth v. City of Aurora , 487 F.3d 506, 512 (7th Cir. 2007); see also United States v. Nonahal , 338 F.3d 668, 670–71 (7th Cir. 2003) (affirming denial of request to move while on supervised release, though district co urt gave no explanation for its denial of original motion or motion for reconsiderat ion). In denying the original modification motion, the court explained that allowing Xion g to live in Texas would be inappropriate because his only tie there was his fiancée, wi th whom he began a relationship while he was in prison. In contrast, Xiong grew up an d had family in Wisconsin. The court also noted that Xiong’s conviction for po ssessing contraband while incarcerated,

see 18 U.S.C. § 1791, made him a “poor candidate” for a transfer.

Xiong also asserts that the court violated his right to family integrity when it refused his request to serve his supervised-rel ease term in Texas. But he has not shown that the conditions of release prohibiting hi m from leaving Eastern District of Wisconsin interferes with any right he may have to associate with his fiancée or her children. See United States v. Lee , 950 F.3d 439, 448–49 (7th Cir. 2020). Xiong can live with his fiancée in Wisconsin, visit Texas with the permission of the court or his probation officer, and seek a transfer of supervision at an appropriate time.
AFFIRMED