United States v. David Olivares , 713 F. App'x 353 ( 2018 )

Case: 17-40575 Document: 00514360212 Page: 1 Date Filed: 02/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40575 FILED
Summary Calendar February 23, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID OLIVARES,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:14-CR-172-1
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
After pleading guilty, David Olivares was sentenced to consecutive
prison terms of 210 months for conspiring to possess with the intent to
manufacture and distribute methamphetamine and 60 months for possessing
a firearm in furtherance of a drug trafficking crime. The judgment was entered
in July 2016, and he did not directly appeal. Approximately eight months later,
Olivares filed a pro se, self-styled “Motion to Run Sentences Concurrent.” He
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-40575 Document: 00514360212 Page: 2 Date Filed: 02/23/2018
No. 17-40575
now appeals from the district court’s orders denying that motion and denying
his subsequent motion seeking reconsideration of the denial. Olivares argues
that, in light of Dean v. United States, 137 S. Ct. 1170 (2017), which he
describes as limiting the effect of the consecutive sentencing requirement of 18
U.S.C. § 924(c), the district court abused its discretion in failing to modify his
sentence so that his prison terms would run concurrently.
A judgment of conviction that includes a prison sentence “constitutes a
final judgment,” 18 U.S.C. § 3582(b), and a district court may not correct or
modify a term of imprisonment once it has been imposed, except in those
specific circumstances enumerated by Congress in § 3582(b) and (c), see United
States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997). Olivares does not
contend, and the record does not reflect, that his motion for concurrent
sentences falls under any provision of § 3582(b) or (c). Also, because the district
court did not indicate that it was construing the motion as a 28 U.S.C. § 2255
motion, much less provide Olivares with the notice and warnings required
before recharacterizing a pro se motion as a first § 2255 motion, the motion for
concurrent sentences did not arise under § 2255. See Castro v. United States,
540 U.S. 375, 383 (2003).
Olivares’s motion for concurrent sentences was an unauthorized motion
that the district court lacked jurisdiction to consider. See United States v.
Early, 27 F.3d 140, 141-42 (5th Cir. 1994). Olivares has thus appealed from
the district court’s denial of a “meaningless, unauthorized motion” and its
subsequent refusal to reconsider that denial. See id. at 142. The judgment of
the district court is AFFIRMED.
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