Summary
affirming dismissal of a section 3582 motion because the BOP had not filed the motion
Summary of this case from Stewart v. United StatesOpinion
No. 02-35935.United States Court of Appeals, Ninth Circuit.June 18, 2003
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Oregon, Robert E. Jones, District Judge, Presiding. D.C. No. CV-02-06242-REJ, CR-89-60105-REJ.
Before: RYMER, THOMAS and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Michael David Powell appeals pro se the district court's denial of his motion under 18 U.S.C. § 3582(c)(1)(A) for "compassionate release" and its dismissal of his fifth motion under 28 U.S.C. § 2255, which challenges his 15-year sentence under the Armed Career Criminal Act for being a felon in possession of a firearm. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We affirm.
The district court properly denied Powell's § 3582(c)(1)(A) motion, because Powell did not provide a motion from the Director of the Bureau of Prisons. See 18 U.S.C. § 3582(c)(1)(A) (stating that a court may modify a sentence "upon motion of the Director of the Bureau of Prisons"); United States v. Mullanix, 99 F.3d 323, 324 (9th Cir.1996) (stating that a district court may modify a sentence only when authorized by a statute or rule).
The district court also properly dismissed Powell's latest § 2255 motion, because it is successive and unauthorized. See 28 U.S.C. § 2244(b)(3)(A) (stating that successive § 2255 motions may not be filed in district court without prior authorization from the court of appeals). Were we to construe Powell's appeal as a request for authorization, we would deny the request, because the claims he seeks to raise do not meet the standards set forth in § 2255. SeeUnited States v. Lorentsen, 106 F.3d 278, 279 (9th Cir.1997) (order) (stating that successive § 2255 motions must rely on new evidence establishing that no reasonable factfinder would have found the movant guilty or on a new rule of constitutional law).
Thus, the district court properly denied Powell's requests for relief.
All pending motions are denied.
AFFIRMED.