United States v. Robinson ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20872
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE W. ROBINSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-94-CR-121-4
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April 10, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
George W. Robinson, a federal prisoner (# 08656-035),
appeals the district court’s denial of his “Motion for Arrest
o[f] Judgment and [to] Dismiss the Indictment,” purportedly
pursuant to FED. RULES. CRIM. P. 12(b)(2) and 34. He argues that
the indictment was unconstitutional under Apprendi v. New Jersey,
530 U.S. 466 (2000), because it failed to charge a specific
quantity of drugs.
A Rule 12(b)(2) motion to dismiss an indictment must be made
before trial. United States v. Dixon, 273 F.3d 636, 642 (5th
*
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this opinion should not be published and is not precedent except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. 01-20872
-2-
Cir. 2001). A Rule 34 motion for arrest of judgment must be
filed within seven days of the entry of a guilty plea. See
United States v. Fagan, 821 F.2d 1002, 1012 (5th Cir. 1987).
Insofar as Robinson’s motion may be construed as a 28 U.S.C.
§ 2255 motion to vacate his sentence, the motion would be
successive and would require Robinson to first obtain
certification from this court. See United States v. Rich,
141 F.3d 550, 551 (5th Cir. 1998); 28 U.S.C. §§ 2255, 2244(b).
Robinson has not sought such certification.
Because the district court was without jurisdiction to
entertain Robinson’s “Motion for Arrest o[f] Judgment,” Robinson
has appealed from the denial of a “meaningless, unauthorized
motion.” See United States v. Early, 27 F.3d 140, 142 (5th Cir.
1994). Because the motion should have been dismissed for lack of
jurisdiction, the district court’s denial of Robinson’s motion is
affirmed on this alternative basis. See id.
AFFIRMED.