Quimby v. United States

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-10793
Summary Calendar
PATRICIA ARLENE QUIMBY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CV-440
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Patricia Arlene Quimby, federal prisoner # 26863-177,
pleaded guilty to conspiracy to manufacture, possess with intent to
distribute, and distribute a controlled substance, and she was
sentenced to 210 months in prison. Quimby filed a petition for a
writ of mandamus pursuant to 28 U.S.C. § 1651 and a motion for
relief from judgment pursuant to FED. R. CIV. P. 60(b) challenging
the legality of the sentence she received. The district court
determined that it lacked jurisdiction over her pleadings and
dismissed them on that basis.
*
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opinion should not be published and is not precedent except under the limited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.
Quimby argues on appeal that the All Writs Act found at
28 U.S.C. § 1651 authorized the district court to grant her a writ
of mandamus requiring that her guideline sentencing range be
recalculated. However, 28 U.S.C. § 1651(a) does not provide an
independent grant of jurisdiction. Texas v. Real Parties In
Interest, 259 F.3d 387, 392 (5th Cir. 2001). Because the relief
sought by Quimby would not be in aid of the jurisdiction of a
federal court, the district court correctly dismissed the petition.
28 U.S.C. § 1651(a); see Texas v. Real Parties In Interest, 259
F.3d at 392.
Quimby’s argument against the district court’s dismissal
of her Rule 60(b) motion is conclusional at best. It does not
acknowledge the district court’s construction of her motion as an
unauthorized successive motion filed under 28 U.S.C. § 2255.
Accordingly, Quimby has abandoned her challenge to the district
court’s dismissal of her motion. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Finally, FED. R. APP. P. 21 is inapplicable to the instant
appeal. That rule does not confer jurisdiction upon this court to
grant the relief sought by Quimby in the district court.
AFFIRMED.
2