### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30721 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. GARLAND D. MILLER, Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:07-CR-50032-1

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Garland D. Miller, f

o rmer federal prisoner # 13658-035, was convicted by

a jury of two counts of tax evasion, a violation o f 26 U.S.C. § 7201. United States v. Miller , 588 F.3d 897, 900 (5th Cir. 2009). He was sentenced to 48 months of imprisonment and to three years of supervised r e l e a s e . I d

. at 9 03. Miller appeals the district court’s d enial o f his “Petition for Writ of E rror C oram Nobis

or in the Alternative Motion to Amend Judgment Pursuant to F E D R. C IV
. P. 60,” which he filed seeking to challenge the portion of his c riminal judgment ordering U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 19, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30721 Document: 00512214645 Page: 1 Date Filed: 04/19/2013No. 12-30721

him to pay restitution to D e s o t o R egional Health System (DRHS). Miller contends that the restit u t i o n o rder was equivalent to a conviction for embezzle m ent and, as a result, the U.S. Department of Health and Human Services (HHS) has e xcluded him “from c ertain health care and billing practices and thereby d epriving him of his livelihood.” Miller requests to have the

r e s titution order vacated via the writ of coram nobis or amended pursuant to Federal Rule of Civil Procedure 60. Although Miller was released from the Bureau of Prisons on December 30, 2011, h e is still serving a three-year term of s upervised release. Thus, Miller does not satisfy the “no longer in custody” requirement for filing a writ o f coram nobis. See United States v. H atten , 167 F.3d 884, 887 n.6 (5th C ir. 1999); United States v. Dyer , 136 F.3d 4 17, 422 (5th C ir. 1998); se e a lso Pack v. Yusuff , 218 F.3d 448, 454 n.5 (5th Cir. 2000) ( stating that “custody” f or purposes of 28 U.S.C. §§ 2255 and 2241 encompasses supervised release). As such, the district court did not abuse its discre t i o n i n denying Miller a writ. See Santos-Sanchez v. United States , 5 48 F.3d 327, 330 (5th C ir. 2008), vacated on other grounds , 130 S. Ct. 2340 (2010); see also Sojourner T v. Edwards , 974 F.2d 27, 3 0 (5th Cir. 1992) (holdi n g that this court may affirm the district court’s judgment on any grounds supported by the record). Additionally, Miller has not shown that the district court e rred in finding that his r equest to a mend the restitution order in his criminal judgment was not cognizable pursuant to Rule 60, nor does he cite any authority to support his request to enjoin HHS from e xc l u di n g him “from certain health care and b i l l i n g practices and thereby depriving him of his livelihood.” Accordingly, the judgment of the district court is AFFIRMED.

2 Case: 12-30721 Document: 00512214645 Page: 2 Date Filed: 04/19/2013