United States v. Hart ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30486
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH L. HART,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 94-CR-30038-3
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July 13, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Kenneth L. Hart appeals the district court’s denial of his
motion filed pursuant to former Fed. R. Crim. P. 35. Hart
contends that the district court erred in determining the amount
of restitution owed and in designating the victim.
At any stage of judicial proceedings, federal courts may
question, sua sponte, whether subject matter jurisdiction is
proper. In re Bass, 171 F.3d 1016, 1021 (5th Cir. 1999). A
*
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that this opinion should not be published and is not precedent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. 98-30486
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district court’s holding that it has jurisdiction is a legal
determination, which we review de novo. Id.
Hart concedes that he did not file his motion within the
120-day period prescribed by former Rule 35. The time limit
imposed by former Rule 35(b) was jurisdictional, and the district
court was without authority to extend the period. See In re
United States, 900 F.2d 800, 803 (5th Cir. 1990).
Former Rule 35(a) allowed the sentencing court to “correct
an illegal sentence at any time.” United States v. Lopez, 26
F.3d 512, 517 n.6 (5th Cir. 1994). An illegal sentence is one
that the judgment of conviction does not authorize. United
States v. Morgan, 346 U.S. 502, 506 (1954).
Hart, at most, alleges error in his sentence. He does not
request correction of an illegal sentence. Accordingly, the
district court was without jurisdiction to consider Hart’s
motion. Hart’s appeal is DISMISSED.