United States v. Thompson ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 03-50381
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD DEE THOMPSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-92-CR-3-1
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Richard Dee Thompson, federal prisoner # 55709-080, appeals
the district court’s denial of his motion for reconsideration of
the denial of his motion for modification of his sentence
pursuant to 18 U.S.C. § 3582(c)(2). The district court summarily
denied the motion in an order entered on January 6, 2003.
Thompson filed his motion for reconsideration on February 11,
2003. See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir.
*
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that this opinion should not be published and is not precedent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. 03-50381
-2-
1998)(pro se prisoner pleadings are deemed filed on date that
they are placed in the prison mail system for mailing).
A motion for reconsideration in a criminal proceeding is a
legitimate procedural device. United States v. Cook, 670 F.2d
46, 48 (5th Cir. 1982). Such a motion is timely if it is filed
within the period allotted for noticing an appeal, in this case,
within ten days of the district court’s order denying the
§ 3582(c)(2) motion. See United States v. Brewer, 60 F.3d 1142,
1143-44 (5th Cir. 1995); FED. R. APP. P. 4(b).
Thompson’s motion for reconsideration was filed 36 days
after entry of the order denying the § 3582(c)(2) motion. The
motion was therefore untimely, and the district court was without
jurisdiction to entertain it. See United States v. Miramontez,
995 F.2d 56, 58 n.2 (5th Cir. 1993); Cook, 670 F.2d at 48.
Although the district court did not indicate whether it denied
the motion on its merits or for lack of jurisdiction, the denial
of the motion is AFFIRMED on jurisdictional grounds. See United
States v. Early, 27 F.3d 140, 142 (5th Cir. 1994).
AFFIRMED.