United States v. Walton ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 24, 2008
No. 07-30362
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JAMES NATHAN WALTON
Defendant-Appellant
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.
PER CURIAM:*
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
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30362
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.
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