U.S. v. Nonahal, 02-3942.

• Decision Date: 28 July 2003
• Docket Number: No. 02-3942.,02-3942.
• Citation: 338 F.3d 668
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mohammed Ali NONAHAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

338 F.3d 668

UNITED STATES of America, Plaintiff-Appellee, v. Mohammed Ali NONAHAL, Defendant-Appellant.

No. 02-3942.

United States Court of Appeals, Seventh Circuit.

Submitted April 29, 2003.^*

Decided July 28, 2003.

Stephen A. Ingraham (submitted), Office of U.S. Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Mohammed Ali Nonahal (Submitted), Upland, CA, for Defendant-Appellant, pro se.

Before COFFEY, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Burdened by student-loan debt, Mohammed Ali Nonahal and several friends attempted to counterfeit United States currency, first on a home printing press and later at their local Kinko's. All six would-be counterfeiters ultimately pleaded guilty to conspiracy, see 18 U.S.C. §§ 371, 471. Mr. Nonahal served 31 months in prison and is currently serving a three-year term of supervised release. He would like now to move to Pakistan to attend dentistry school, but the terms of his supervised release prohibit that move. He therefore petitioned the district court to modify the conditions in order to facilitate his relocation from California to Pakistan. The court denied his motion without explanation. Mr. Nonahal now appeals. For the following reasons, we affirm the judgment of the district court.

I BACKGROUND

Although Mr. Nonahal is currently living in the Central District of California and reporting to a probation officer there, the sentencing court in the Eastern District of Wisconsin has retained jurisdiction over him. His term of supervised release is scheduled to end in October 2003. One condition of that release is that Mr. Nonahal cannot leave the Central District of California without permission from the California probation officer or the court in Wisconsin. Another condition is that he report to his probation officer in person each month. In July 2002, with the assistance of counsel, Mr. Nonahal filed a motion requesting that the sentencing court rescind those conditions. Before the counterfeiting scheme, Mr. Nonahal had been studying dentistry at Marquette University but was dismissed for academic reasons. Because the dismissal prevented him from gaining entry to another dental school in the United States, he sought admission to an overseas program. In his petition, Mr. Nonahal alleged that he has been admitted to a dental school in Karachi, Pakistan, where he hoped to start classes in September 2002. Mr. Nonahal suggested that, instead of reporting to his probation officer in person each month, he could send a report by mail.

The Government opposed Mr. Nonahal's motion, arguing that the proposed modifications would terminate effectively his supervised release by placing him beyond the reach of meaningful supervision. The Government suggested that Mr. Nonahal could resume his studies after his supervised release expired. Mr. Nonahal replied that he could not wait; he hoped to eventually practice dentistry in California and, in order to do so, had to complete his last year of studies and sit for the January 2004 California dental licensing exam.

The district court denied his motion without explanation on August 23, 2002. Mr. Nonahal did not appeal that decision. Instead, now proceeding pro se, he moved for reconsideration in the district court, essentially reasserting his original argument that he had to travel to Pakistan immediately to begin school. The court denied this motion as well, again without explanation. Mr. Nonahal then filed this appeal; his notice of appeal was filed outside the ten-day window as the counting rules then worked, see Fed.R.App.P. 4(b)(1)(A); Fed.R.App.P. 26(a)(2) (amended in December 2002 to exclude weekends and holidays when counting the ten days); United States v. Lilly, 206 F.3d 756, 762-63 (7th Cir.2000) (appeal from ruling on petition for clarification of conditions of supervised release is criminal in nature), but the district court allowed the late filing, see Fed.R.App.P. 4(b)(4).

II DISCUSSION

As an initial matter, the Government suggests in its brief that this case is moot because Mr. Nonahal asserted that he must complete his final year of dental school by January 1, 2004, and there is no longer sufficient time for him to do so. However, Mr. Nonahal was asking for a modification of the conditions of his supervised release, not for permission to attend dental school. Because the travel restriction and the requirement that Mr. Nonahal personally meet with his probation officer currently remain in force, his request to modify those conditions is not moot. It is true that Mr. Nonahal's reason for seeking the modification may no longer be pressing, but the conditions are still impeding his travel. Cf. Church of Scientology v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (even if it is too late to provide a fully satisfactory remedy, case is not moot when partial remedy is available).

Another threshold matter is Mr. Nonahal's contention that the district judge who rejected his petition had a conflict of interest because the judge had graduated from Marquette University Law School and Mr. Nonahal had been dismissed from Marquette's dental program. Such general assertions of partiality are governed by 28 U.S.C. § 455(a), which requires that a party move for recusal first in the district court and then seek immediate review if the motion is denied. See United States v. Mansoori, 304 F.3d 635, 667 (7th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1761, 155 L.Ed.2d 522 (2003); United States v. Smith, 210 F.3d 760, 764 (7th Cir.2000). Mr. Nonahal did not follow that procedure; his challenge therefore is waived. See Smith, 210 F.3d at 764. In any event, the argument that the district judge's status as a Marquette University Law School alumnus would have prejudiced his view of Mr. Nonahal's motion is frivolous.

Turning to the merits, Mr. Nonahal emphasizes the urgency of his desire to complete his education in Pakistan. But he makes no real effort to explain how the district court abused its discretion in refusing to modify his supervised release conditions, see United States v. Sines, 303 F.3d 793, 800 (7th Cir.2002) (applying abuse of discretion standard on direct review of supervised release conditions), and instead rests on poorly developed assertions, without citations to authority, that the court erred. We have dismissed pro se litigants' appeals for similar noncompliance with Federal Rule of Appellate Procedure 28(a)(9). See, e.g., Anderson v. Hardman, 241 F.3d 544, 545-46 (7th Cir.2001). Nevertheless, we have considered the issues that we can discern from Mr. Nonahal's brief and have found no indication that the court abused its discretion in denying Mr. Nonahal's motion.¹

First, Mr. Nonahal asserts that the court failed to recognize the importance of education to his rehabilitation when it refused to modify his conditions. A sentencing court retains jurisdiction to modify or revoke supervised release after considering...