US v. Theresa Sirri Mubang

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:01-cr-00252-LMB-1 Copies to all parties and the district court/agency. [999214268]. Mailed to: Theresa Mubang. [13-7067]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7067

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THERESA SIRRI MUBANG,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:01-cr-00252-LMB-1)

Submitted:

September 30, 2013

Decided:

October 9, 2013

Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Theresa Sirri Mubang, Appellant Pro Se.
Steve Alan Linick,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Theresa Mubang appeals a district court order denying
her

motion

to

modify

restitution

vacate the restitution order.

payments

and

her

motion

to

We affirm in part, vacate in part

and remand.
In her motion to modify, Mubang was seeking a district
court

order

payment
Program.

directing

schedule

under

the

Bureau

the

of

Inmate

Prisons

to

Financial

modify

the

Responsibility

Because Mubang was challenging the execution of her

sentence, such a request should have been made in a 28 U.S.C.A.
§ 2241 (West 2006 & Supp. 2013) petition.

See United States v.

Diggs, 578 F.3d 318, 319 (5th Cir. 2009).
currently

incarcerated

at

the

SFF

Because Mubang is

Hazelton

in

the

Northern

District of West Virginia, the district court in this instance
did not have jurisdiction to entertain the request to modify the
payment schedule because a § 2241 petition must be filed in the
district of incarceration.

See 28 U.S.C.A. § 2241(a); In re

Jones, 226 F.3d 328, 332 (4th Cir. 2000).

However, a district

court must “if it is in the interest of justice, transfer [the
petition] . . . to any other such court in which [it] could have
been brought at the time it was filed[.]”

28 U.S.C. § 1631

(2006).
Accordingly, we vacate that part of the order denying
Mubang’s motion to modify and remand for the district court to
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determine whether transferring Mubang’s motion to modify to the
proper

federal

district

court

would

serve

the

interests

of

justice, see 28 U.S.C. § 1631, or whether the action is more
appropriately

dismissed

without

prejudice

to

allow

Mubang

to

file her action in the appropriate district court.
Because Mubang did not establish any reason to grant
her motion to vacate the order of restitution, we affirm for the
reasons cited by the district court.

United States v. Mubang,

No. 1:01-cr-00252-LMB-1 (E.D. Va. June 14, 2013).
Accordingly,

we

affirm

that

part

of

the

district

court’s order denying the motion to vacate and we vacate that
part of the order denying the motion to modify and remand for
further consideration by the district court in accordance with
this opinion.

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before

this

court

and

argument

would

not

aid

the

decisional

process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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