Londono v. Fleming ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50173
Summary Calendar
NICOLAS LONDONO,
Petitioner-Appellant,
versus
LESTER E. FLEMING,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-97-CV-182
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December 1, 1998
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Nicolas Londono, federal prisoner # 43758-066, pleaded
guilty to conspiracy to distribute cocaine and was sentenced to
120-months of incarceration, the result of a two-level
enhancement in offense level because his coconspirator carried a
weapon in furtherance of the conspiracy. Londono enrolled in and
successfully completed the residential drug abuse treatment
program at the prison. The program provides for a sentence
reduction of up to one year for inmates whose offense of
conviction was nonviolent. 18 U.S.C. § 3621(e)(2)(B). The
*
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that this opinion should not be published and is not precedent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. 98-50173
-2-
Bureau of Prisons (BOP) concluded that Londono was not eligible
for the sentence reduction because his sentence for the narcotics
offense had been enhanced for carrying a weapon.
Londono filed an application for habeas corpus relief under
28 U.S.C. § 2241 challenging this action of the BOP. Without
serving the respondent either with the suit or the judgment, the
district court granted Londono habeas relief by ordering the BOP
to consider him a nonviolent offender for the purpose of
determining his eligibility for the one-year sentence reduction.
R. 61-66. On motion of the respondent, under Fed. R. Civ. P.
60(b), the district court vacated the original judgment and
ultimately denied relief under Venegas v. Hennman, 126 F.3d 760,
761 (5th Cir. 1997).
The district court did not abuse its discretion in granting
Rule 60(b) relief to the respondent. See Carimi v. Royal
Carribean Cruise Line, Inc., 959 F.2d 1344, 1345 (5th Cir. 1992);
Hester Int’l. Corp. v. Federal Republic of Nigeria, 879 F.2d 170(5th Cir. 1989). Additionally, this court in Venegas addressed
Londono’s contentions and held that the BOP’s "exclusion of . . .
drug convictions with enhanced sentences due to possession of a
weapon from eligibility for early release after substance abuse
treatment is consistent with the Bureau’s authority." Venegas,
126 F.3d at 763-64. The district court’s judgment is AFFIRMED.
Londono’s motion to supplement the record is DENIED.
AFFIRMED; MOTION DENIED.