United States v. Wright ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10277
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARD GORSKI WRIGHT,
also known as Bernard Wright,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-37-1-G
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September 7, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Bernard Gorski Wright, federal prisoner # 31346-077, appeals
the district court’s denial of his motion, styled as a 18 U.S.C.
§ 3582(c) motion, arguing that the Government breached his plea
agreement by failing to move at sentencing for a downward
departure, pursuant to U.S.S.G. § 5K1.1, after he provided it
with substantial assistance. The Government has moved to dismiss
the appeal on the ground that the motion being appealed was
*
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that this opinion should not be published and is not precedent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. 01-10277
-2-
actually a successive 28 U.S.C. § 2255 motion filed without prior
authorization from this court.
The Government’s motion is well-taken and is GRANTED.
Section 3582(c) authorizes a court to modify a federal prisoner’s
sentence based upon certain factors not applicable in the instant
case. See 18 U.S.C. § 3582(c). As the Government argues, the
motion was really a successive § 2255 motion. See Tolliver v.
Dobre, 211 F.3d 876, 877 (5th Cir. 2000); see also 28 U.S.C.
§§ 2244(b) and 2255; United States v. Rich, 141 F.3d 550, 551
(5th Cir. 1998). Because Wright neither requested nor received
such authorization prior to filing the instant motion, the
district court lacked jurisdiction to consider it. See 28 U.S.C.
§§ 2244(b) and 2255; United States v. Key, 205 F.3d 773, 774 (5th
Cir. 2000); see also Hooker v. Sivley, 187 F.3d 680, 681-82 (5th
Cir. 1999). Consequently, this court lacks jurisdiction to
review the denial of that motion. See Key, 205 F.3d at 774. The
appeal is DISMISSED.