United States v. Brandon Setzer

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 26, 2019
• Docket: 18-7384
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-7384

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRANDON RICARDO SETZER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:17-cr-00058-RGD-RJK-1)

Submitted: February 21, 2019 Decided: February 26, 2019

Before GREGORY, Chief Judge, and AGEE and DIAZ, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Brandon Ricardo Setzer, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Brandon Ricardo Setzer, a federal inmate, appeals the district court’s order

denying Setzer’s postjudgment motion to alter his criminal judgment to render him

eligible for early release upon Setzer’s completion of the Residential Drug Abuse

Program. See 18 U.S.C. § 3621(e)(2) (2012). The district court perceived it lacked the

statutory authority to act on Setzer’s motion because his criminal judgment, which was

entered in September 2017, was final. See 18 U.S.C. § 3582(b) (2012). However, the

district court could have considered Setzer’s pro se motion as a 28 U.S.C. § 2241 (2012)

petition because Setzer was, in essence, challenging the Bureau of Prison’s computation

and execution of his sentence. See Fontanez v. O’Brien, 807 F.3d 84, 86 (4th Cir. 2015)

(explaining that “a federal prisoner must challenge the execution of a sentence under 28

U.S.C. § 2241”). Accordingly, we vacate the district court’s order and remand this

matter to the district court with direction to construe the motion as a § 2241 petition. *

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.

VACATED AND REMANDED

* We recognize that the district court, in turn, will need to transfer this matter to the district of Setzer’s confinement. See United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (explaining that a § 2241 claim that attacks the execution of the sentence itself must be brought “in the district of confinement rather than in the sentencing court”).