United States v. Palmer-Contreras ( 1998 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-1085
UNITED STATES,
Appellee,
v.
ELIGIO PALMER-CONTRERAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Eligio Palmer-Contreras on brief pro se.
Guillermo Gil, United States Attorney, Jose A. Quiles-
Espinosa, Senior Litigation Counsel, and Camille Velez-Rive,
Assistant United States Attorney, on brief for appellee.
September 11, 1998
Per Curiam. The district court denied the motion of
appellant Eligio Palmer-Contreras to "equalize" his sentence;
appellant filed this motion under 18 U.S.C. 3553(a)(6).
After reviewing the record and the parties' briefs, we conclude
that there was no statute or rule under which appellant was
entitled to seek this relief.
First, 3553 which is part of the Sentencing
Reform Act is only applicable to offenses committed after
November 1, 1987, the effective date of the Act. See United
States v. Glantz, 884 F.2d 1483, 1488 (1st Cir. 1989) (citations
omitted). Appellant committed his offense in October 1987.
Thus, 3553 does not apply to him.
This leaves the remedies in existence prior to the
effective date of the Sentencing Reform Act Fed. R. Crim. P.
35(b) and 28 U.S.C. 2255 and 2241. The 120-day time limit
of the applicable version of Rule 35(b) is jurisdictional. See
United States v. Ames, 743 F.2d 46, 47-48 (1st Cir. 1984) (per
curiam). Appellant filed the instant motion about nine years
after the district court imposed sentence. As a result, such
a motion would have been time-barred.
Construing appellant's motion as a petition for
relief under 28 U.S.C. 2255 also would not help appellant.
That is, appellant had filed a previous 2255 motion in July
1990 and this motion was denied on the merits. If the current
motion were construed as being brought under 2255, then, it
would be appellant's second. Under the Antiterrorism and
Effective Death Penalty Act which applies here since the
motion at hand was filed in 1997, see Pratt v. United States,
129 F.3d 54, 58 (1st Cir. 1997), cert. denied, 118 S. Ct. 1807
(1998) appellant would be prohibited from filing a second or
successive motion in the district court absent permission from
this court. See 28 U.S.C. 2255 (1996). He has not received
such permission. Nor do we think such a motion would be
successful on the merits. See Entrekin v. United States, 508
F.2d 1328, 1330 (8th Cir. 1974) (a claim of disparate sentencing
is not cognizable in a 2255 motion).
Finally, 2241 is not available to appellant in this
case because he is not contesting the conditions of his
confinement. See Miller v. United States, 564 F.2d 103, 105
(1st Cir. 1977).
As for the new argument concerning appellant's role
in the offense, appellant has waived it by failing to raise it
below. See United States v. Dietz, 950 F.2d 50, 55 (1st Cir.
1991).
The judgment of the district court dismissing
appellant's motion is affirmed.