United States v. Cotton ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10531
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VERNARDE COTTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:88-CR-70-1-R
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August 27, 1999
Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Vernarde Cotton appeals the district court’s denial of his
motion to correct his sentence pursuant to Fed. R. Crim. P.
35(a)(version applicable to offenses committed prior to Nov. 1,
1987). We originally remanded the case to the district court for
a determination whether Cotton’s untimely notice of appeal should
be excused for good cause. The district court found good cause.
After he pleaded guilty to three counts of bank robbery in
1987, the district court sentenced Cotton to a pre-guidelines
*
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that this opinion should not be published and is not precedent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.
No. 98-10531
-2-
sentence of 60 years of imprisonment. The court eventually
reduced Cotton’s sentence to time-served plus three, concurrent,
five-year terms of probation. After Cotton violated his
probation, the court sentenced him to 40 years of imprisonment.
Cotton raises a plethora of challenges to the district
court’s sentencing orders. However, to obtain the relief he
seeks, Cotton must show that his sentence exceeded the court’s
statutory authority and was therefore a legal nullity. See
United States v. Henry, 709 F.2d 298, 308 (5th Cir. 1983).
Upon the revocation of Cotton’s probation, the district
court could require Cotton to serve the sentence originally
imposed or any lesser sentence which might originally have been
imposed. See 18 U.S.C. § 3653 (version applicable to offenses
committed prior to Nov. 1, 1987); United States v. Olivares-
Martinez, 767 F.2d 1135, 1139 (5th Cir. 1985). Thus, Cotton’s
sentence of 40 years of imprisonment was not unauthorized and the
district court did not err by denying Cotton’s Rule 35(a) motion.
The judgment of the district court is AFFIRMED. Cotton’s motion
to amend and supplement his reply brief out of time is DENIED.
AFFIRMED. MOTION DENIED.