IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30788

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEPHEN F. HATTEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

February 9, 1999

Before KING, Chief Judge, STEWART and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

In this case we are asked to determine whether the district court’s order setting a payment

schedule for restitution was without jurisdictional basis. We determine that the district court did not

have jurisdiction to entertain the motion and we thus vacate the district court’s order and remand the

case with instructions to the district court to dismiss for want of jurisdiction.

On February 22, 1994, Stephen F. Hatten (“Hatten”) pled gui l

ty to student l oan fraud, 20

U.S.C. § 1097(a), application loan fraud, 18 U.S.C. § 1014, and social security fraud, 42 U.S.C.1 Specifically, the district court ordered Hatten to make restitution as follows: $19,604.22 to the

United Student Aid Fund, $1,368.67 to the Louisiana Office of Student Financial Assistance,

$14,433.16 to the Ohio Student Aid Commission, and $8,000 to the Bank of Baltimore.

2 If we construed Hatten’s filing of his Objections to Restitution Order as a common-law criminal

case mo t io n fo r reconsideration, we would be without jurisdiction to hear his appeal. In U nited

States v. Brewer

, 60 F.3d 1142 (5 t h Cir. 1995), we recognized that common-law criminal case

motions for reconsideration toll the time for bringing an appeal and destroy the finality of an

underlying judgment. S ee id. at 1143-44. However, Hatten filed his Objections pursuant to F E D

. R.

C RIM

. P. 51, which indicates that he did not intend to file a motion for reconsideration but rather to

challenge the manner in which a ruling of the court was made.

2 § 408(a)(7)(B). The district court sentenced him to an eighteen-month term of imprisonment and a

five-year term of supervised release, fined him, and ordered him to pay restitution. 1 It ordered Hatten

to make the restitution payments to the United States Probation Office (“USPO”) during the period

of supervised release. The district court was silent as to the schedule for the restitution payments,

and Hatten did not directly appeal any part of his sentence.

Nearly three years after he was sentenced, Hatten filed a Moti on for Declaratory Judgment.

Citing United States v. Albro

, 32 F.3d 173 (5 th Cir. 1994), he moved to invalidat e the restituti on

order under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, on the grounds that the court

incorrectly delegated the task of determining the schedule for restitution payments to the USPO. The

district court construed Hatten’s motion to be a motion to amend his criminal judgment, and th e

Governm ent responded to Hatten’s motion with a Motion to Set Restitution Schedule. In this

motion, it conceded that the court had incorrectly delegated the task of determining the schedule for

restitution payments and moved it to set a restitution payment schedule for Hatten and, specifically,

to adopt the schedule already proposed by the USPO. Acting pursuant to 18 U.S.C. § 3664(k), the

court adopted the schedule proposed by the USPO and ordered that Hatten pay $1,486 per month

in restitution. Hatten appealed this order. 23 Restitution is a condition of probation or supervised release. See 18 U.S.C. § 3663(g).

4 Although § 3663(g) was superceded by § 3664(k) (and the district court cited the latter section

as basis for its jurisdiction), Hatten’s conviction predated § 3664(k) and thus § 3663(g) still applied

to his case.

3 D ISCUSSION

Before addressing the merits of Hatten’s claim, we must first determine whether the district

court possessed jurisdiction to enter its order. S ee Williams v. Chater

, 87 F.3d 7 02, 704 (5 th Cir.

1996) (noting that th is co urt is obligated to determine jurisdiction even where the parties do not

directly challenge it). Based on our review of the motions, it appears t hat both Hatten and the

Government sought modification of the terms of Hatten’s required restitution based solely on the

grounds that the conditions of supervised release imposed by the district court were illegal. 3

The statutory bas is fo r t he district court’s order is purportedly contained in 18 U.S.C. §§

3663(g) and 3583(e)(2). 4 Section 3583(e)(2) provides in pertinent part that

The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B),

(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6)

--

. . . mo dify, reduce, or enlarge the conditions

of supervised release,

. . . pursuant to the Federal Rules of Criminal Procedure relating to

modification of probation and the provisions applicable to the init ial setting of the terms and

conditions of post-release supervision . . . .

18 U.S.C. § 3583(e)(2). The enumerated fact o rs t hat the court must consider in making a

modification determination require a consideration of general punishment issues such as deterrence

and public safety but do not include a consideration of the legality of the supervised release itself.

Whether a district court has jurisdiction to modify the conditions of supervised release on the

grounds of illegalit

y is an issue o f first impression in this circuit. The Second Circuit, however,

recently decided a case invo lving exactly these issues. In U nited States v. Lussier

, 104 F.3d 32 (2 nd

Cir. 1997), our sister circuit held that a district court does not have the authority under 18 U.S.C.4

§ 3583(e)(2) to modify a restitution order on the ground of illegalit y. S ee id. at 37. It relied on the

plain language of § 3583(e)(2) in determining that the “streamlined scheme of sentencing review”

established by the Sentencing Reform Act of 1984 would be disrup t ed by the acceptance of an

interpretation of § 3583(e)(2) that “authorize[d] the district court, at any time, to modify or rescind

an allegedly illegal condition of supervised release.” I d. We concur with the Second Circuit’s

determination that §§ 3663(g) and 3583(e)(2) do not provide a jurisdictional basis for the district

court’s order.

Alternatively, we have considered other routes by which the district court may have exercised

jurisdiction. We determine that each fails as a proper course. For instance, the district court’s order

could not have been rooted in 18 U.S.C. § 3582(b) because that statute authorizes a district court to

modify or correct a previously imposed se nt ence only in a limited number of circumstances, s ee

United States v. Bridges , 116 F.3d 1110, 1112 (5 th Cir. 1997), none of which existed in this case.

Furthermore, the court could not have issued it s order pursuant to 28 U.S.C. § 2255.

Although we suggested as much in United States v. Segler , 37 F.3d 1131 (5 th Cir. 1994), we make

plain today that complaints concerning restitution may not be addressed in § 2255 proceedings. In

Segler , we concluded that “§ 2255’s limitation on who may seek release from federal custody also

implies a limitation on the claims they may assert to obtain a release.” I d. at 1137. Specifically, we

held th at t he t ypes of claims cognizable under § 2255 were limited to “claims relating to unlawful

custody,” not those relating “only to the imposition of a fine.” Id.5 Even were we to find that the district court had jurisdiction under § 2255 in this case, we would

conclude that Hatten is not entitled to relief under § 2255 because his claim was not of constitutional

dimension. Relief under § 2255 is reserved for transgressions of constitutional rights and for a

narrow range of injuries that could not have been raised on direct appeal and would, if c ondoned,

result in a complete miscarriage of justice. S ee United States v. Vaughn

, 955 F.2d 367, 368 (5 th Cir.

1992). Claims falling outside these parameters that could have been raised on direct appeal, but were

not, may not be raised in a collateral proceeding. S ee United States v. Capua

, 656 F.2d 1033, 1037

(5 th Cir. 1981).

Hatten’s challenge to the restitution porti on of his sentence raises a nonconstitutional issue that

could have been raised on direct appeal. Specifically, A lbro , the basis of his motion, is a statutory

construction case and does not raise a constitutional issue. S ee 32 F.3d at 174

. Furthermore, we

have previously held that restitution, in general, is a sentencing issue that should be raised on direct

appeal. See United States v. Gonzalez-Gonzalez , 995 F.2d 222 (table) (5 th Cir. 1993).

6 Additionally, w e not e in passing t hat Hatten’s motion may not be treated as a writ of c oram

nobis

. The writ of c oram nobis is an extraordinary remedy available to a petitioner no longer in

custody who seeks to vacate his criminal conviction. S ee United States v. Castro

, 26 F.3d 557, 559

(5 th Cir. 1994). Since Hatten was in custody when he filed his motion, the writ of c oram nobis was

not available to him.

We also note that the Declaratory Judgment Act is insufficient to create federal jurisdiction where

none arises elsewhere under federal law. S ee Gaar v. Quirk

, 86 F.3d 451, 453 (5 th Cir. 1996). As

established above, the district court does not have jurisdiction under any other federal law.

5 This conclusion brings our circuit into alignment with the First Circuit, which recently held

that a person on parole may not challenge the restitution porti on of a sentence pursuant to § 2255. 5

See Smullen v. United States

, 94 F.3d 20, 26 (1 st Cir. 1996). B ut see Blaik v. United States

, 117 F.3d

1288, 1294 n.9 (11 th Cir. 1997) (concluding that a challenge to restitution payments was permissible

under § 2255). The district court did not have jurisdiction pursuant to § 2255 to issue its order. 6

C ONCLUSION

We conclude that the district court had no jurisdiction to entertain either Hatten’s motion or

the Government’s cross-motion. As a practical mat t er, Hatten’s motivation in filing the motion

appears to have been to contest the amounts that the USPO was requiring him to pay. If Hatten

cannot meet the payment schedule established for him, his proper course of action is to petition the6

district court to modify its restitution order. S ee 18 U.S.C. § 3663(g) (requiring the court to consider

Hatten’s “employment status, earning abilit y, financial resources, the willfulness of [his] failure to pay,

and any other special circumstances that may have a bearing on [his] abilit y to pay”). We thus vacate

the order of the district court and remand with instructions to enter an order dismissing both motions

for lack of jurisdiction. See Bridges , 116 F.3d at 1113.