Opinion
03 C 50540
December 11, 2003
MEMORANDUM OPINION AND ORDER
Petitioner, Maurice Buchanan, has filed what he labels as a "Petition for Right of Review Pursuant to Title 5 U.S.C. § 702 for Violation of Title 18 U.S.C. § 3583(b)(1)." Buchanan's prior motion under 28 U.S.C. § 2255 was denied on September 27, 1999 in an order which found he had waived his right to file a § 2255 motion. A second attempt to raise issues in a collateral proceeding by motion was dismissed for want of jurisdiction on August 5, 2002 as an attempt to avoid the need for prior appellate approval of a second collateral attack. This present petition also seeks review of his sentence, is another attempt to avoid the need for prior approval of a second collateral attack, see § 2255 ¶ 8; Johnson v. United States. 196 F.3d 802 (7th Cir. 1999) and this court is without jurisdiction despite the label placed on the petition. The petition is dismissed for lack of jurisdiction in this court. In any event, Buchanan is clearly wrong in his position that the 10-year supervised release portion of his sentence is unauthorized. His argument ignores the express language in section 3583(b)(1) that qualifies the five-year limit "except as otherwise provided" along with the limitation mirrored in section 841(b) that allows for a term of supervised release longer than five years "[n]otwithstanding section 3583 of Title 18." Not only did the government file a notice of enhanced penalties under 18 U.S.C. § 851 which triggered, inter alia, a 10-year mandatory minimum term of supervised release upon conviction, but also even without this enhancement, under 21 U.S.C. § 841(b)(1)(A)(iii) the term of supervised release is at least five years without any maximum set forth as applied to both counts 1 and 17 of his convictions.
IT IS HEREBY ORDERED AND ADJUDGED that the petition is dismissed for lack of jurisdiction.