BLD-210                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1729
                                       ___________

                                HOWARD O. KIEFFER,
                                               Appellant

                                             v.

                            WARDEN ALLENWOOD LSCI
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 1-14-cv-01547)
                      District Judge: Honorable John E. Jones III
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 21, 2015
               Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

                              (Opinion filed: May 28, 2015)
                                       _________

                                        OPINION*
                                        _________

PER CURIAM

       Howard O. Kieffer appeals from the order of the District Court dismissing a




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
habeas petition in which he purported to challenge under 28 U.S.C. § 2241 the execution

of one of his federal sentences. We will affirm.

                                             I.

       Kieffer has been convicted in federal courts in both North Dakota and Colorado of

charges arising from his unlicensed operation of a “nationwide criminal law practice.”

United States v. Kieffer, 

, 1146 (10th Cir. 2012). The North Dakota

District Court sentenced Kieffer to 51 months of imprisonment on August 14, 2009, and

the Eighth Circuit Court of Appeals affirmed. See 

States v. Kieffer,

(8th Cir. 2010)). At issue in this case is Kieffer’s subsequent Colorado

sentence. On August 16, 2010, the Colorado District Court sentenced Kieffer to a term of

57 months in prison consecutive to his North Dakota sentence. The Tenth Circuit Court

of Appeals affirmed Kieffer’s convictions but remanded for resentencing because, inter

alia, the Colorado District Court erred in making its sentence consecutive. See 

1172.

       On remand, and on August 22, 2013, the Colorado District Court orally

resentenced Kieffer to a term of 99 months in prison concurrent to his 51-month North

Dakota sentence and stated that the purpose of the sentence was to ensure that Kieffer

serve an additional 48 months in prison. See United States v. Kieffer, 596 F. App’x 653,

657 (10th Cir. 2014), petition for cert. filed, — U.S.L.W. — (U.S. May 7, 2015) (No. 14-

9670). The Colorado District Court later attempted to memorialize its oral sentence in a

First Amended Judgment, in which it stated that it “adjusted the ninety-nine (99) months
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by subtracting the fifty-one (51) months already served in [North Dakota], for a

remaining sentence of forty-eight (48) months[.]” 

of Prisons (“BOP”)

interpreted the First Amended Judgment as imposing only a 48-month term of

imprisonment and began processing Kieffer for release. See 

of that fact, the Colorado District Court entered a series of further

amended judgments in an effort to clarify its intent that Kieffer serve 48 months in

addition to his North Dakota sentence, for a total Colorado sentence of 99 months. See

Kieffer contends that the BOP calculated his release date as February 6,

2014, on the basis of the First Amended Judgment, but then recalculated it as January 2,

2017, after the Colorado District Court further amended its judgment.

       Thereafter, and while simultaneously challenging the amended judgments on

appeal to the Tenth Circuit, Kieffer filed a § 2241 habeas petition in the district of his

confinement, which at that time was the Middle District of Pennsylvania. Kieffer argued

that the BOP erred by calculating his sentence pursuant to the Colorado District Court’s

amended judgments instead of its oral sentence of August 22, 2013, which he contended

imposed a term of only 48 months that expired on February 6, 2014. He further argued

that the amended judgments are invalid because they conflict with the oral sentence. See

United States v. Faulks, 

, 211 (3d Cir. 2000).

       While Kieffer’s § 2241 petition remained pending, the Tenth Circuit vacated the

Colorado District Court’s amended judgments as unauthorized and remanded for that

court to issue still another amended judgment consistent with its oral sentence—i.e., 99
                                              3
months, minus 11 months for time served on the North Dakota sentence, for a total

sentence of 88 months. See Kieffer, 596 F. App’x at 656, 661-62. In doing so, the Tenth

Circuit expressly rejected the interpretation of the Colorado District Court’s oral sentence

that Kieffer advanced in his § 2241 petition. 

The Colorado District Court

later issued a new judgment (D. Colo. Crim. No. 1-09-cr-00410-001, ECF No. 225), and

Kieffer’s appeal from that judgment is pending (10th Cir. No. 15-1078).

       After the Tenth Circuit issued its ruling, the District Court in this case dismissed

Kieffer’s § 2241 petition for lack of jurisdiction, reasoning that it constituted an attack on

the validity of the Colorado District Court’s amended judgments instead of a challenge to

the BOP’s execution of his sentence. The District Court also noted that it would have

denied Kieffer’s petition on the merits because he remains subject to imprisonment even

under the oral sentence on which he relies. Kieffer appeals.1

                                              II.

       As the District Court properly explained, § 2241 permits challenges to the

execution but not the validity of a federal sentence. See Cardona v. Bledsoe, 

, 535 (3d Cir. 2012). Absent circumstances not present or alleged here, challenges to



1
  The BOP transferred Kieffer back to a federal facility in Colorado before the District
Court issued its ruling. That transfer did not divest the District Court (or us) of the §
2241 jurisdiction that attached when Kieffer filed his petition. See Rumsfeld v. Padilla,

, 441 & n.14 (2004); Barden v. Keohane, 

, 477 n.1 (3d Cir.
1990). Kieffer does not require a certificate of appealability to appeal the denial of his §
2241 petition, see Vasquez v. Strada, 

, 433 (3d Cir. 2012), and we thus have
jurisdiction under 28 U.S.C. § 1291. According to the BOP’s inmate locator, available at
                                              4
the validity of a sentence may be brought only under 28 U.S.C. § 2255 and only in the

sentencing court. See In re Dorsainvil, 

, 249 (3d Cir. 1997). Thus, we agree

that Kieffer’s petition belonged in the Colorado District Court to the extent that it

challenged the validity of that court’s amended judgments. To that same extent, Kieffer’s

challenge also became moot when the Tenth Circuit vacated those amended judgments.

       We acknowledge Kieffer’s argument that his petition does more than merely

challenge the validity of the amended judgments. Kieffer argues that the terms of his oral

sentence control and that his oral sentence expired on February 6, 2014. If Kieffer were

correct, then he arguably would be entitled to release now regardless of the terms of any

amended judgment. See United States v. Cephus, 

, 710 (7th Cir. 2012)

(noting that, although the BOP generally “looks to the written judgment” in calculating a

sentence, it ultimately is required to apply the sentence “as intended and pronounced by

the sentencing court”) (quotation marks omitted). Thus, it may be possible to construe

Kieffer’s petition as a challenge to the execution of his sentence that has not been mooted

by the Tenth Circuit’s vacation of the amended judgments.

       To the extent that Kieffer’s petition can be so construed, however, it is foreclosed

by the substance of the Tenth Circuit’s ruling. The Tenth Circuit squarely rejected

Kieffer’s argument that the Colorado District Court orally sentenced him to only 48

months in prison because, as the Tenth Circuit explained, the Colorado District Court



http://www.bop.gov/inmateloc, Kieffer is currently scheduled for release on December
29, 2016.
                                              5
unambiguously expressed its intent to sentence him to 48 month in prison in addition to

the time served on his North Dakota sentence, for a total sentence of 99 months. See

Kieffer, 596 F. App’x at 661. Thus, the Tenth Circuit remanded for entry of a new

judgment consistent with that oral sentence, the Colorado District Court has entered a

new judgment, and Kieffer is challenging that judgment on appeal. We express no

opinion on the merits of that appeal but, even assuming that we had the authority to reach

a contrary conclusion in the context of Kieffer’s § 2241 petition, we would not do so for

the reasons explained by the Tenth Circuit.

                                              III.

       For these reasons, we will affirm the judgment of the District Court. Kieffer’s

motion to expedite this appeal and to adjudicate it on the District Court record is granted

to the extent that we have resolved it on the District Court record without briefing.




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