United States v. McEwen ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30157
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DELTON LEE MCEWEN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CR-50012-ALL
--------------------
October 18, 1999
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Delton Lee McEwen appeals the denial of his second motion
for “MODIFICATION OR REMISSION OF THE INTEREST AND PENALTIES”
relating to a $75,000 fine imposed by the district court
following his conviction of attempted possession with intent to
distribute d-methamphetamine. McEwen did not file a timely
notice of appeal with regard to the denial of his motion. See
Fed. R. App. P. 4(b). It would be futile for this court to
remand McEwen’s case to the district court to determine whether
*
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that this opinion should not be published and is not precedent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. 99-30157
-2-
there was excusable neglect in filing the late notice of appeal,
see United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984),
because even if there is excusable neglect and the notice of
appeal from the order denying McEwen’s second motion for
modification or remission of his fine is timely, this court would
dismiss McEwen’s case. The district court did not have
jurisdiction to entertain McEwen’s motion because it does not fit
into the jurisdictional framework of any postconviction relief
available to McEwen. See United States v. Early, 27 F.3d 140,
141-142 (5th Cir. 1994).
McEwen’s notice of appeal, liberally construed, is timely as
to the district court’s denial of his motion for reconsideration
of the denial of his first motion for “MODIFICATION OR REMISSION
OF THE INTEREST AND PENALTIES.” McEwen asks this court to waive
the interest payments during his period of incarceration or to
remand his case to the district court with instructions to do so.
However, McEwen’s first motion, like his second motion, was
unauthorized and the district court did not have jurisdiction to
consider it. See id. at 141. The district court should have
denied McEwen’s motion for “MODIFICATION OR REMISSION OF THE
INTEREST AND PENALTIES,” and McEwen’s motion for reconsideration
of the denial of that motion, as unauthorized, rather than on the
merits. See id.
As the district court was without jurisdiction to consider
McEwen’s unauthorized motion for modification or remission of his
fine in the first instance, McEwen’s motion for remand to the
district court for modification of his fine is DENIED. McEwen’s
No. 99-30157
-3-
appeal from the district court’s refusal to reconsider its denial
of an unauthorized motion is without arguable merit and is
therefore DISMISSED as frivolous. See Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983).