United States v. Gibbs ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-20522
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN GIBBS, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CR-36-25
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Marvin Gibbs, federal prisoner # 75279-079, appeals from the
district court’s denial of his post-conviction motion filed under
18 U.S.C. § 3742(a). The district court construed the motion as
an unauthorized successive 28 U.S.C. § 2255 motion.
Gibbs argues that the district court erred in recharacterizing
his motion as a successive 28 U.S.C. § 2255 motion. As the
district court correctly determined, Gibbs cannot seek post-
conviction relief pursuant to 18 U.S.C. § 3742(a) because he has
already filed a direct criminal appeal. See United States
*
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this opinion should not be published and is not precedent except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. 03-20522
-2-
v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Because Gibbs has
previously filed a 28 U.S.C. § 2255 motion and because the
instant motion raises issues that could have been raised in the
prior motion, the district court did not err in construing his
post-conviction motion as an unauthorized successive 28 U.S.C.
§ 2255 motion. See In re Cain, 137 F.3d 234, 235 (5th Cir.
1998). Accordingly, the judgment of the district court is
AFFIRMED.