United States v. Driver , 326 F. App'x 876 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2009
No. 08-50796
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CURTIS RAY DRIVER
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:05-CR-211-ALL
Before GARWOOD, JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Curtis Ray Driver was convicted of possession with the intent to distribute
crack cocaine and possession of a firearm during a drug-trafficking offense. In
December 2006 Driver was sentenced to consecutive terms of 48 months and 60
months of imprisonment. By order entered April 9, 2008, the district court
subsequently granted a 18 U.S.C. § 3582(c)(2) motion, in light of the Sentencing
Commission’s recent amendments to the base offense levels for crack cocaine
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50796
offenses, and reduced Driver’s 48-month sentence to 38 months. Driver also filed
a 28 U.S.C. § 2255 motion challenging his conviction. By order entered April 9,
2008, the district court denied Driver’s § 2255 motion. Driver did not appeal this
decision of the district court.
Driver now appeals the district court’s July 10, 2008 order denying
Driver’s motion, filed June 30, 2008, for copies of the search warrant that was
executed in his criminal case and his arrest records. Driver alleges that these
records are necessary to proceed with a claim challenging his conviction for
possession of a firearm during a drug-trafficking offense. He also attacks the
validity of the conviction.
Because Driver did not timely appeal the denial of his § 2255 motion, any
challenge to his conviction is not before this court. When Driver filed his motion
for documents in the district court, he did not have a § 2255 motion pending
before the district court; thus, Driver is not entitled to free copies of the
documents in question. See United States v. Carvajal, 989 F.2d 170, 170 (5th
Cir. 1993); Walker v. United States, 424 F.2d 278, 278-79 (5th Cir. 1970).
Accordingly, the district court did not err in denying Driver’s motion. The
judgment of the district court is AFFIRMED.
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