United States v. Gonzalez-Arenas , 707 F. App'x 557 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 19, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1277
(D.C. No. 1:04-CR-00282-REB-1)
ISMAEL GONZALEZ-ARENAS, a/k/a (D. Colo.)
Jorge Castillo; a/k/a Ismael Gonzales
Arenas; a/k/a Jorge Castillo-Gonzalez;
a/k/a Ismael Gonzales-Arenas; a/k/a Ismael
Gonsales-Arenas; a/k/a Ismael Arenas-
Gonzalez; a/k/a Ismail Gonzalez-Arenas,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
_________________________________
Ismael Gonzalez-Arenas filed a motion in district court titled: “Complain
rebutalling the unconstitutionally unlawful Orders of Robert E. Blackburn dated and filed
on 06-12, 2017 and all unconstitutional unlawful procedurals and notifying that my godly
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
name has been and is copyright and demanding relief.”1 ROA Vol. II at 401. The district
court denied the motion. We affirm.
Mr. Gonzalez-Arenas was convicted in 2011 on federal gun and drug charges and
sentenced to life in prison. We dismissed his appeal. In 2016, this court authorized him
to file a motion under 28 U.S.C. § 2255 to challenge his sentence under Johnson v.
United States, 135 S.Ct. 2551 (2015). That motion is pending in district court.
In disposing of the motion filed in this matter, the district court “construe[d] the
pro se motion as impugning the jurisdiction of this court and seeking reconsideration of
the sentence imposed long ago.” ROA Vol. II at 454. The court concluded “(1) that I
had jurisdiction to try, convict, and sentence the defendant; (2) that I lack jurisdiction
under 18 U.S.C. § 3582(c) to modify the extant sentence; and (3) that I lack jurisdiction
to consider the motion as a successive motion under 28 U.S.C. § 2255.” Id. at 455.
We agree with the district court. It (1) had jurisdiction over Mr. Gonzalez-
Arenas’s criminal case under 18 U.S.C. § 3231; (2) under 18 U.S.C. § 3582(c), it lacked
jurisdiction to modify his sentence; and (3) because this court has not authorized a § 2255
motion for this matter, see 28 U.S.C. § 2255(h), it lacked jurisdiction on this basis. Mr.
Gonzalez-Arenas’s opening and reply briefs provide no nonfrivolous arguments to
contest these grounds.
1
Because Mr. Gonzalez-Arenas is pro se, we liberally construe his filings but
do not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
2
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s
dismissal of Mr. Gonzalez-Arenas’s motion for lack of jurisdiction. We also deny his
request to proceed in forma pauperis. See Lister v. Dep’t of the Treasury, 408 F.3d
1309, 1312 (10th Cir. 2005) (requiring a “reasoned, nonfrivolous argument” for ifp).
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
3