James v. United States

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6405
RAYMOND EDWARD JAMES,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CR-85-12-01-BR)
Submitted: July 10, 2003 Decided: July 16, 2003
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Raymond Edward James, Appellant Pro Se. Frank DeArmon Whitney,
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Raymond Edward James appeals the district court’s order
denying relief on his motion filed under former Rule 35(a) of the
Federal Rules of Criminal Procedure, applicable to offenses
committed before November 1, 1987. We have reviewed the record and
the district court’s opinion and find that the district court
lacked jurisdiction to entertain the motion. We therefore affirm
the denial of relief on that ground.
In his Rule 35(a) motion, James asserted that the district
court did not make specific findings as to the amount of
restitution within ninety days and improperly delegated the timing
and amount of restitution payments to the probation officer.
James’ challenge to the restitution order is to a sentence imposed
in an illegal manner—not to an illegal sentence. See, e.g., Hill
v. United States, 368 U.S. 424, 430 & n.9 (1962). Therefore, James
had 120 days from the time the sentence was imposed to file his
Rule 35 motion. See Fed. R. Crim. P. 35(a) (applicable to offenses
committed prior to Nov. 1, 1987). The 120-day time limit is
jurisdictional. United States v. Pavlico, 961 F.2d 440, 443 (4th
Cir. 1992) (citing United States v. Addonizio, 442 U.S. 178, 189
(1979)).
James’ sentence was imposed in May 1985.1 Because James’ Rule
35(a) motion was not filed until November 21, 2002, well beyond the
1
The other triggering events in Rule 35(a) do not apply here.
2
120-day limit, the district court did not have jurisdiction to
entertain the motion. Id. Even if the 120-day period was calculated
from March 3, 1995 (the date on which this Court decided United
States v. Johnson, 48 F.3d 806 (4th Cir. 1995), and on which the
delegation claim became available to James), his November 2002
motion still was untimely. See Pavlico, 961 F.2d at 443. We
therefore affirm the district court’s denial of relief on the
ground that the Rule 35 motion was untimely filed and the district
court therefore lacked jurisdiction to entertain it.2 We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
2
Construing the Rule 35 motion as one filed under 28 U.S.C.
§ 2255 (2000) does not save the action. Before James may file a
successive § 2255 motion in the district court, he must obtain
authorization from this court under 28 U.S.C. § 2244 (2000).
3