United States v. Robert Hodges ( 2018 )

Case: 18-10298 Document: 00514546300 Page: 1 Date Filed: 07/09/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-10298 July 9, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERT LEE HODGES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CR-174-1
Before BENAVIDES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Robert Lee Hodges, federal prisoner # 42263-177, appeals the denial of
his “Motion Pursuant to Rule 52(b) [of the Federal Rules of Criminal
Procedure] Error in Sentencing Guidelines Calculation,” which challenged the
sentence he received following his guilty plea conviction for possession with
intent to distribute 500 grams or more of cocaine. In his motion, Hodges
asserted that the district court failed to follow circuit precedent in denying him
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-10298 Document: 00514546300 Page: 2 Date Filed: 07/09/2018
No. 18-10298
a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 and in
determining that an upward departure was appropriate under U.S.S.G.
§ 4A1.3. The district court concluded that the motion was without merit.
On appeal, Hodges contends that the district court’s failure to provide
reasons for its decision renders this court unable to engage in appellate review.
He also repeats his assertions that he is entitled to relief from the purportedly
improper actions at sentencing. Hodges maintains that he is entitled to
proceed under Rule 52(b) but that if his citation to that rule was incorrect, the
district court should have construed his motion as arising under Federal Rule
of Civil Procedure 60(b).
Contrary to Hodges’s assertion, Rule 52(b) does not provide a procedural
mechanism for collaterally challenging a prisoner’s conviction or sentence;
rather, “recourse may be had to [Rule 52(b)] only on appeal[.]” United States
v. Frady, 456 U.S. 152, 163 (1982). Likewise, Rule 60(b) is not applicable in
criminal proceedings. See FED. R. CIV. P. 1. A collateral challenge to a federal
sentence must be raised under 28 U.S.C. § 2255. See Tolliver v. Dobre, 211
F.3d 876, 877 (5th Cir. 2000); § 2255(a). However, because Hodges had filed a
prior § 2255 motion, he was required to obtain authorization to file a successive
motion, which he did not do. See 28 U.S.C. §§ 2244(b), 2255(h).
Hodges’s motion was an unauthorized motion that the district court was
without jurisdiction to entertain. See United States v. Early, 27 F.3d 140, 142
(5th Cir. 1994). Accordingly, we AFFIRM on alternate grounds. See id.
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