Opinion
No. 18-7384
02-26-2019
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRANDON RICARDO SETZER, Defendant - Appellant.
Brandon Ricardo Setzer, Appellant Pro Se.
UNPUBLISHED
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) 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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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.
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"). --------
VACATED AND REMANDED