CLD-112

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2809

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UNITED STATES OF AMERICA

v.

TYRONE SAVAGE,

Appellant

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Criminal Nos. 03-cr-00094-001, 04-cr-00028-001)

District Judge: Honorable Gregory M. Sleet

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Submitted on the Appellee’s Motion for Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

 February 9, 2012

Before: RENDELL, HARDIMAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: March 1, 2012 )

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OPINION

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PER CURIAM 

Pro se appellant Tyrone Savage, a federal prisoner incarcerated in Atwater, 

California, appeals from an order of the United States District Court for the District of 
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Delaware denying his “Motion to Defer/Squash Restitution Until Release.” The 

government has filed a motion for summary action. For the reasons discussed below, we 

will grant the government’s motion and summarily affirm the District Court’s order. 

In 2004, Savage pleaded guilty to eight counts of bank robbery, and in 2005, the 

District Court sentenced him to 120 months’ imprisonment. The District Court also

ordered Savage to pay a $900 assessment and $10,696 in restitution. Savage was 

instructed to make payments while in custody through the Bureau of Prisons’ Inmate 

Financial Responsibility Program (IFRP).

Savage appealed his sentence, and we affirmed the District Court’s judgment. See

United States v. Savage, 180 F. App’x 334 (3d Cir. 2006). Savage thereafter filed a 

motion in the District Court under 28 U.S.C. § 2255, which the Court denied, and we 

then refused to issue a certificate of appealability. 

In June 2011, Savage filed the motion that is at issue here. He claimed that jobs 

have become less freely available in prison and that, if he continued to pay the restitution 

that he owed, he would not be able to “enjoy the purchase of many basic necessities that 

would help him to sustain himself while incarcerated.” Accordingly, he asked to suspend 

his restitution payments until he is released from prison. Attached to this motion was a 

so-called “letter motion.” In the letter motion, Savage reiterated his request to postpone 

payment, while also stating that he had “strong feelings against the reimbursement of 

restitution to Wachovia,” because, he claimed, the bank had been involved in slave 
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trading and drug trafficking. The District Court orally denied this motion, and Savage 

filed a timely notice of appeal to this Court.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We may affirm the District 

Court on any ground supported by the record. See OSS Nokalva, Inc. v. European Space 

Agency, 617 F.3d 756, 761 (3d Cir. 2010). We discern three possible arguments that 

Savage’s motion may present: (1) a request to modify the restitution payment schedule 

ordered by the District Court; (2) a request to modify the restitution payment schedule

instituted by the IFRP program; and (3) a challenge to the overall validity of the Courtimposed restitution order.1

To the extent Savage sought to challenge the restitution payment schedule 

imposed by the District Court, the Court had jurisdiction to modify the payment schedule 

to address “any material change in the defendant’s economic circumstances that might 

affect the defendant’s ability to pay restitution.” 18 U.S.C. § 3664(k); see also United 

States v. Jaffe, 417 F.3d 259, 267 (2d Cir. 2005) (noting that “the district court retains 

jurisdiction to amend or adjust the restitution order if there is any material change in [the 

defendant’s] economic circumstances”). Here, while Savage claimed, generally, that 

prison jobs have become scarce, he failed to present any evidence or specific allegations 

about his economic circumstances, such as how much he previously earned per month, 

 1 In his appellate brief, Savage argues that the District Court failed to make clear the 

statutory basis for the restitution order and that this failure requires the order to be 

vacated. That argument, however, was never presented to the District Court, and has thus 

been waived. See, e.g., Del. Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006). 

Moreover, the argument also fails for the reasons discussed below.
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how much he earns now, or how much money he has in his prison account. Further, his 

claimed moral compunction about repaying Wachovia does not constitute a “material 

change in [his] economic circumstances.” Accordingly, Savage is not entitled to relief 

under § 3664(k). See generally United States v. Vanhorn, 399 F.3d 884, 886 (8th Cir. 

2005) (denying motion under § 3664(k) because prisoner failed to present evidence 

establishing an “immediate change in his economic circumstances”).

To the extent that Savage challenges the payments he is required to make through 

the IFRP, the proper vehicle for such a claim is a petition under 28 U.S.C. § 2241 filed in 

the district where his sentence is being carried out. See McGee v. Martinez, 627 F.3d 

933, 937 (3d Cir. 2010); see also United States v. Diggs, 578 F.3d 318, 319-20 (5th Cir. 

2009); cf. United States v. Lemoine, 546 F.3d 1042, 1046 (9th Cir. 2008). Thus, to 

pursue this claim, Savage must file a § 2241 petition in the Eastern District of California.

Finally, to the extent that Savage seeks to challenge the overall validity of the 

District Court’s restitution order, such a challenge should have been made on direct 

appeal. The limited jurisdiction conferred by § 3664(k) does not encompass such a broad 

attack on a restitution order. Moreover, even assuming that Savage could challenge a 

restitution order via 28 U.S.C. § 2255 — a highly doubtful proposition, see United States 

v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999) — he must obtain permission from this 

Court before filing a successive motion, see 28 U.S.C. § 2255(h), which he has not done. 

Therefore, if Savage intended to proceed under § 2255, the District Court properly 

refused relief. See Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002) (explaining 
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that “[w]hen a second or successive habeas petition is erroneously filed in a district court 

without the permission of a court of appeals, the district court’s only option is to dismiss 

the petition or transfer it to the court of appeals”).

Accordingly, we grant the government’s motion for summary action and will 

affirm the District Court’s judgment.