United States v. Walton , 276 F. App'x 381 ( 2008 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    April 24, 2008
    No. 07-30362
    Summary Calendar                   Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    JAMES NATHAN WALTON
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 2:03-CR-20080-1
    Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    James Nathan Walton, federal prisoner # 11948-035, appeals the district
    court’s denial of his “motion to compel specific performance of plea agreement
    and for substantial assistance pursuant to [18] U.S.C. § 3553(e), Fed. Rules Cr.
    Proc. Rule 35(b), 18 U.S.C.A., U.S.S.G. § 5K1.1, ” in which he challenged the
    sentence imposed for his guilty plea conviction for possession with intent to
    distribute cocaine base.         He argues that Government breached the plea
    agreement by failing to file a motion for a reduction of his sentence on account
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30362
    of his substantial assistance. He argues that the Government’s refusal to file a
    motion for a reduction of his sentence and the district court’s denial of this
    motion violated his due process rights.
    Section 5K1.1 has no postsentencing application, and only the Government
    can file a motion for reduction of a defendant’s sentence pursuant to § 3553(e)
    and Rule 35(b). United States v. Lopez, 
    26 F.3d 512
    , 523 (5th Cir. 1994); United
    States v. Early, 
    27 F.3d 140
    , 141 (5th Cir. 1994). Walton’s motion was “an
    unauthorized motion which the district court was without jurisdiction to
    entertain.” See Early, 
    27 F.3d at 142
    . Walton argues for the first time on appeal
    that the Government’s refusal to file such a motion was based on his race. We
    will not consider a new argument raised for the first time on appeal. See
    Leverette v. Louisville Ladder Co., 
    183 F.3d 339
    , 342 (5th Cir. 1999); cf. United
    States v. Cervantes, 
    132 F.3d 1106
    , 1109 (5th Cir. 1998). Accordingly, we affirm
    the district court’s denial of Walton’s motion. See Early, 
    27 F.3d at 142
    .
    AFFIRMED.
    2
    

Document Info

Docket Number: 07-30362

Citation Numbers: 276 F. App'x 381

Judges: Benavides, Garza, Per Curiam, Wiener

Filed Date: 4/24/2008

Precedential Status: Non-Precedential

Modified Date: 8/2/2023