U.S. v. Bell

Full title: UNITED STATES of America, Plaintiff-Appellee v. Robert Edward BELL…

Court: United States Court of Appeals, Fifth Circuit

Date published: Dec 11, 2007

257 F. App'x 801 (5th Cir. 2007)

Opinion

No. 06-51395. Conference Calendar.

December 11, 2007.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Richard Gale Ferguson, Waco, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas, USDC No. 6:03-CR-254-2.

Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Robert Edward Bell pleaded guilty to conspiracy to manufacture methamphetamine and on resentencing was sentenced to a 240-month term of imprisonment. This court affirmed. United States v. Bell, 187 Fed.Appx. 418 (5th Cir. 2006). Bell appeals from the district court's denial of his motion for a new trial, filed under the authority of FED.R.CRIM.P. 33(b)(1), in which he argued that newly discovered evidence warranted resentencing. Bell argues that the district court abused its discretion in failing to conduct a hearing on the motion and abused its discretion in denying the motion.

Bell's postjudgment motion challenging his sentence following a guilty plea was "not properly characterized as one for a new trial." United States v. Lewis, 921 F.2d 563, 564 (5th Cir. 1991). The district court's jurisdiction to correct or modify a defendant's sentence is limited to those specific circumstances enumerated by Congress in 18 U.S.C. § 3582(b). See United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997). Bell does not assert, and the record does not show, that his motion in the district court falls under any provision of § 3582. Although the motion could be construed as a 28 U.S.C. § 2255 motion, the district court did not suggest that it was so construing the motion, and it did not provide Bell notice. See Castro v. United States, 540 U.S. 375, 381-83, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). Consequently, the motion did not arise under § 2255.

Bell's motion was an unauthorized motion which the district court was without jurisdiction to consider. See United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994).

AFFIRMED.