United States v. Carbajal-Depaz , 75 F. App'x 259 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 12, 2003
Charles R. Fulbruge III
Clerk
No. 03-50171
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
versus
PEDRO CARBAJAL-DEPAZ
Defendant-Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CR-108-1-SS
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Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Pedro Carbajal-Depaz, Texas prisoner #15168-180, appeals the
district court’s dismissal of his postconviction motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 motion and the district court’s denial of his
postconviction motion to rescind his fine. Carbajal pleaded
guilty to conspiracy to possess with intent to distribute more
than five kilograms of cocaine in violation of 21 U.S.C. § 846
and money laundering in violation of 18 U.S.C. § 1956(h).
*
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that this opinion should not be published and is not precedent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. 03-50171
-2-
As Carbajal argues, the dismissal of his 28 U.S.C. § 2255
motion should be without prejudice. See Stewart v. Martinez-
Villareal, 523 U.S. 637, 645 (1998); Fassler v. United States,
858 F.2d 1016, 1019 (5th Cir. 1988). Because the district court
did not indicate whether it was dismissing Carbajal’s 28 U.S.C.
§ 2255 motion with or without prejudice, the dismissal is
presumed to be with prejudice. See Nationwide Mutual Ins. Co. v.
Unauthorized Practice of Law Comm., 283 F.3d 650, 655 n.26 (5th
Cir. 2002). The dismissal of Carbajal’s 28 U.S.C. § 2255 motion
is therefore AFFIRMED but REMANDED to the district court so it
can modify its order to dismiss the motion without prejudice.
As the district court did not have jurisdiction to review
Carbajal’s motion to rescind his order, the denial of this motion
is AFFIRMED. See United States v. Early, 27 F.3d 140, 141-42
(5th Cir. 1994); United States v. Hatten, 167 F.3d 884, 886 (5th
Cir. 1999); see also 18 U.S.C. § 3582(c)(1); FED. R. CRIM. P. 35;
18 U.S.C. § 3742.
DISMISSAL OF 28 U.S.C. § 2255 MOTION AFFIRMED BUT REMANDED
WITH INSTRUCTIONS THAT DISTRICT COURT MODIFY ITS ORDER TO REFLECT
DISMISSAL IS WITHOUT PREJUDICE; AFFIRM DENIAL OF MOTION TO
RESCIND FINE.