Opinion
No. 07-30362. Summary Calendar.
April 24, 2008.
Brett L. Grayson, Assistant U.S. Attorney, U.S. Attorney's Office Western District of Louisiana, Lafayette, LA, for Plaintiff-Appellee.
James Nathan Walton, Yazoo City, MS, pro se.
Appeal from the United States District Court for the Western District of Louisiana, USDC No. 2:03-CR-20080-1.
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
James Nathan Walton, federal prisoner # 11948-035, appeals the district court's denial of his "motion to compel specific performance of plea agreement and for substantial assistance pursuant to [18] U.S.C. § 3553(e), Fed. Rules Cr. Proc. Rule 35(b), 18 U.S.C.A. U.S.S.G. § 5K1.1," in which he challenged the sentence imposed for his guilty plea conviction for possession with intent to distribute cocaine base. He argues that Government breached the plea agreement by failing to file a motion for a reduction of his sentence on account of his substantial assistance. He argues that the Government's refusal to file a motion for a reduction of his sentence and the district court's denial of this motion violated his due process rights.
Section 5K1.1 has no postsentencing application, and only the Government can file a motion for reduction of a defendant's sentence pursuant to § 3553(e) and Rule 35(b). United States v. Lopez, 26 F.3d 512, 523 (5th Cir. 1994); United States v. Early, 27 F.3d 140, 141 (5th Cir. 1994). Walton's motion was "an unauthorized motion which the district court was without jurisdiction to entertain." See Early, 27 F.3d at 142. Walton argues for the first time on appeal that the Government's refusal to file such a motion was based on his race. We will not consider a new argument raised for the first time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999); cf. United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998). Accordingly, we affirm the district court's denial of Walton's motion. See Early, 27 F.3d at 142.
AFFIRMED.