United States v. Elrader Browning, Jr. , 490 F. App'x 75 ( 2013 )

FILED
NOT FOR PUBLICATION JAN 04 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50520
Plaintiff - Appellee, D.C. No. 2:87-cr-00571-SVW
v.
MEMORANDUM *
ELRADER BROWNING, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Elrader Browning, Jr., appeals pro se from the district court’s order denying
his motion for correction of an illegal sentence under Federal Rule of Criminal
Procedure 35. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Browning contends that the district court erred by denying his Rule 35
motion. He argues that his sentence is illegal because the sentencing court did not
have jurisdiction to sentence him nunc pro tunc on counts 38-43 of his conviction
after he had already filed his initial notice of appeal, and because the court’s
imposition of sentence on those counts in a second sentencing hearing violated the
Double Jeopardy Clause.
The district court did not abuse its discretion by denying Browning’s
motion. See United States v. Stump, 914 F.2d 170, 172 (9th Cir. 1990).
Browning’s claim that the district court lacked jurisdiction to sentence him nunc
pro tunc should have been brought in his 28 U.S.C. § 2255 motion. See United
States v. Mathews, 833 F.2d 161, 164 (9th Cir. 1987), abrogated on other grounds
by Young v. Holder, 697 F.3d 976, 986 (9th Cir. 2012) (en banc). Even assuming
Browning’s challenge to the nunc pro tunc sentencing is cognizable under Rule 35,
however, it is untimely. Under the former version of the Rule, which the parties
agree applies here, challenges to the manner in which a sentence was imposed had
to be brought within 120 days of the imposition of sentence. See Fed. R. Crim. P.
35 (1987); United States v. Montalvo, 581 F.3d 1147, 1153 (9th Cir. 2009).
Browning did not seek to challenge the nunc pro tunc sentencing until over 20
years had passed from the date of the sentencing.
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To the extent Browning’s claim that his sentence violates the Double
Jeopardy Clause is independent from his challenge to the nunc pro tunc sentencing
and is cognizable under Rule 35, his contention fails. See United States v.
Camacho, 413 F.3d 985, 988 (9th Cir. 2005) (Double Jeopardy Clause “protects
against multiple punishments for the same offense” (internal quotations omitted)).
We decline to address Browning’s remaining contentions because they were
not raised in the district court. See United States v. Robertson, 52 F.3d 789, 791
(9th Cir. 1994) (“Issues not presented to the district court cannot generally be
raised for the first time on appeal.”).
AFFIRMED.
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