IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40346 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIE G. ATKINSON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:87-CR-57-1 -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Willie Gregory Atkinson, federal prisoner # 82807-011,

appeals the district court’s denial of his motion pursuant to

(g) for lack of jurisdiction. Atkinson argues that

according to United States v. Albro,

(5th Cir. 1994),

the district court erred in failing to include in the judgment

and commitment order a provision for the timing of payments or a

payment schedule for the order of restitution and illegally left

the matter to the Bureau of Prisons.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-40346 -2-

The district court correctly denied Atkinson’s motion for

lack of jurisdiction under United States v. Hatten,

(5th Cir. 1999). Albro was a direct criminal appeal of the

restitution portion of the defendant’s sentence. In Hatten, this

court held that the district court did not have jurisdiction

under

(g) to consider the legality of the

restitution order itself. The court noted that if a prisoner

could not meet the payment schedule established, the proper

course of action was to petition the district court to modify its

restitution order pursuant to

(g). According to

Atkinson’s arguments in his motion and now on appeal, he is

attacking the legality of the district court’s order of

restitution under Albro, and so the district court correctly

applied Hatten in determining that it lacked jurisdiction to

consider his motion. If Atkinson seeks merely to argue that due

to his circumstances he cannot meet the payment schedule

established, he can file a motion requesting the district court

to modify the restitution order under

(g) and

present to the district court the circumstances that have a

bearing on his ability to pay.

AFFIRMED.