United States v. Hung Thanh Phan ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 1, 2007
Charles R. Fulbruge III
Clerk
No. 05-41794
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUNG THANH PHAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-88-2
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Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Pursuant to a plea agreement, Hung Thanh Phan, federal
prisoner # 11429-078, pleaded guilty to conspiracy to distribute
or possess with intent to distribute methamphetamine. He appeals
from the denial of a motion for sentence modification putatively
brought pursuant to 18 U.S.C. § 3582(c)(2). He asserts that the
decision in United States v. Booker, 543 U.S. 220 (2005), met the
conditions precedent for an alternative sentence announced by the
district court. He therefore requests that his sentence be
modified accordingly or that his case be remanded for
*
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this opinion should not be published and is not precedent except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. 05-41794
-2-
resentencing. The Government has moved to dismiss the appeal on
the ground that it is barred by the terms of an appeal waiver
contained in Phan’s plea agreement and, alternatively, requests
an extension of time in which to respond if Phan’s appeal is not
dismissed.
The district court’s jurisdiction to correct or modify a
defendant’s sentence is limited to those specific circumstances
enumerated by Congress in 18 U.S.C. § 3582(b). See United States
v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997). The record does
not show that his motion for resentencing in the district court
falls under any provision of § 3582. Although the motion could
be construed as a 28 U.S.C. § 2255 motion, the district court did
not suggest that it was so construing the motion, and it did not
provide Phan notice. See Castro v. United States, 540 U.S. 375,
383 (2003). Consequently, the motion did not arise under § 2255.
Phan’s motion was an unauthorized motion which the district
court correctly concluded that it was without jurisdiction to
consider. See United States v. Early, 27 F.3d 140, 142 (5th Cir.
1994). Phan’s appeal is without arguable merit and should be
dismissed as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). Therefore, Phan’s appeal is
DISMISSED as frivolous. The Government’s motion to dismiss on
the basis of the appeal waiver is DENIED as unnecessary. The
Government’s motion for an extension of time is DENIED as moot.
Phan’s motion to remand for resentencing is DENIED.