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 2020-03

United States v. Jackson Baugus ( 2020 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        MAR 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                       No. 19-30099
Plaintiff-Appellee,             D.C. No. 1:02-cr-00133-SPW-1
v.
JACKSON BRYANT BAUGUS,                          MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted March 3, 2020**
Before:      MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Jackson Bryant Baugus appeals pro se from the district court’s order denying
his motion for “Plain-Error Review, Fed. R. Crim. Proc. 52(b),” and its order
denying his motion for reconsideration. We have jurisdiction under
    28 U.S.C. § 1291
    , and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Baugus’s motion alleged various Guidelines calculation and other
sentencing errors. Because these claims challenged the legality of Baugus’s
sentence, the district court did not err in treating his motion as one arising under
    28 U.S.C. § 2255
    . See Muth v. Fondren,
    676 F.3d 815
    , 818 (9th Cir. 2012) (“A
motion under § 2255 is generally the exclusive remedy for a federal prisoner who
seeks to challenge the legality of confinement.”). Moreover, the district court
correctly concluded that it lacked jurisdiction to consider his claims because he had
not obtained authorization from this court to file a second or successive § 2255
motion. See
    28 U.S.C. § 2255
    (h); United States v. Lopez,
    577 F.3d 1053
    , 1061
(9th Cir. 2009). Finally, the district court was not required to refer Baugus’s
unauthorized motion to this court, see 9th Cir. R. 22-3(a).
Baugus also argues on appeal that the district court erred when it granted in
part his
    18 U.S.C. § 3582
    (c)(2) motion and reduced his sentence to 272 months.
This argument is not properly before the court because Baugus did not make it in
the Rule 52(b) motion at issue in this appeal. Even if Baugus’s notice of appeal
could be construed to evince an intent to appeal the district court’s earlier order
granting the reduction under § 3582(c)(2), it was untimely. See Fed. R. App. P.
4(b); United States v. Ono,
    72 F.3d 101
    , 102-03 (9th Cir. 1995) (because an order
granting or denying a § 3582(c)(2) motion is “criminal in nature,” an appeal from
such an order must be brought within the time limits set by Federal Rule of
2                                      19-30099
Appellate Procedure 4(b)). Because the government has raised this timeliness bar,
we will not consider Baugus’s arguments regarding his § 3582(c)(2) motion. See
United States v. Sadler,
    480 F.3d 932
    , 942 (9th Cir. 2007).
AFFIRMED.
3                                 19-30099