United States v. Gonzales ( 2000 )

No. 99-50422
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50422
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY M. GONZALES,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-91-CR-4-ALL
- - - - - - - - - -
April 11, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Johnny M. Gonzales, federal prisoner # 53504-080, appeals
from the district court’s denial for lack of jurisdiction of his
motion for resentencing pursuant to 18 U.S.C. §§ 3582 and 3742.
He argues that amendments 439 and 503 to the sentencing
guidelines, enacted after he was sentenced, are applicable to his
case and would result in a reduced sentence.
Section 3582(c)(2) applies only to guideline amendments that
operate retroactively, as listed in U.S.S.G. § 1B1.10(c), p.s.
United States v. Miller, 903 F.2d 341, 349 (5th Cir. 1990).
*
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this opinion should not be published and is not precedent except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. 99-50422
-2-
Amendments 439 and 503 are not listed in § 1B1.10(c). Section
3582(c)(2) is therefore inapplicable in Gonzales’s case. See
Miller, 903 F.2d at 349.
Likewise, § 3742 does not provide a jurisdictional basis for
Gonzales’s motion to reduce his sentence. The provisions for a
modification of a sentence under § 3742 are available to a
defendant only upon direct appeal of a sentence or conviction.
United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). This
court heard Gonzales’s direct appeal in 1993.
Because this case does not present a situation to which
either § 3582(c) or § 3742 is applicable, Gonzales’s motion was
an unauthorized one which the district court was without
jurisdiction to entertain. See Early, 27 F.3d at 142. The
district court’s denial of Gonzales’s motion for lack of
jurisdiction is AFFIRMED.
The issues Gonzalez seeks to raise for the first time in
this appeal -- that the district court failed to assign specific
reasons for the sentence imposed, that the court erred in the
amount of marijuana it attributed to Gonzales for sentencing
purposes, that the “relevant conduct that was used to sentence
Appellant Gonzales was no more than hearsay information from a
Government informant, who was paid ten thousand dollars for his
false testimony,” and that he should not have been sentenced as
an organizer or leader -- need not be addressed. Gonzales did
not make any of these allegations in his motion for resentencing
in the district court. As such, they may not be raised on appeal
for the first time. See Leverette v. Louisville Ladder Co., 183
No. 99-50422
-3-
F.3d 339, 342 (5th Cir. 1999) (“‘The Court will not allow a party
to raise an issue for the first time on appeal merely because a
party believes that he might prevail if given the opportunity to
try a case again on a different theory.’”)(citation omitted),
cert. denied, 120 S. Ct. 982 (2000).
Gonzales’s motion to file a reply brief in excess of the
page limitation under the local rules is DENIED.
JUDGMENT AFFIRMED; MOTION DENIED.