United States v. Avelino Gresham ( 2018 )

Case: 17-10712 Document: 00514349259 Page: 1 Date Filed: 02/15/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10712
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 15, 2018
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
AVELINO GRESHAM, also known as Avelino Feliciano, also known as “Nino,”
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-114-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Avelino Gresham, who stands convicted of conspiracy to possess with
intent to distribute a controlled substance in violation of 21 U.S.C. § 846,
appeals the district court’s denial of his postjudgment motion to reduce his
sentence and for resentencing based upon the dismissal of state charges that
were pending against him when his federal sentence was imposed. The district
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-10712 Document: 00514349259 Page: 2 Date Filed: 02/15/2018
No. 17-10712
court denied the motion, finding that the state charges were not used to
enhance the sentence imposed in Gresham’s federal drug case.
In his appellate brief, Gresham does not address the district court’s
reason for denying his postjudgment motion for a sentence reduction. Instead,
he argues that the district court erred in calculating the Sentencing Guidelines
applicable in his case, that the jury should have determined the amount of
drugs attributable to him for sentencing purposes, and that the district court
erred in enhancing his sentence based upon his prior convictions and a bare
arrest record. Those arguments, raised for the first time on appeal, will not be
considered. See Wilson v. Roy, 643 F.3d 433, 435 n.1 (5th Cir. 2011).
No provision conferred the district court with jurisdiction to consider
Gresham’s postjudgment motion. As Gresham’s motion before the district
court did not raise any errors that occurred at or prior to sentencing, 28 U.S.C.
§ 2255 did not provide a jurisdictional basis for the motion. Tolliver v. Dobre,
211 F.3d 876, 877-78 (5th Cir. 2000). Moreover, because Gresham’s motion did
not challenge the manner in which his sentence was being executed, his motion
could not be construed as a 28 U.S.C. § 2241 petition. See id. at 877.
The motion could not have been filed pursuant to either 18 U.S.C. § 3742
or 18 U.S.C. § 3582(c). Regarding § 3742, Gresham filed his motion in the
district court. As to § 3582(c), Gresham, not the Bureau of Prisons, filed the
motion. Moreover, in the motion, Gresham did not base his request for relief
on any action of the United States Sentencing Commission.
Federal Rules of Criminal Procedure 35 and 36 likewise do not apply.
See FED R. CRIM. P. 35; FED. R. CRIM. P. 36; United States v. Mares, 868 F.2d
151, 151 (5th Cir. 1989). In light of the foregoing, we AFFIRM on the
alternative basis that the district court lacked jurisdiction to consider the
motion. See United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994).
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