United States v. Marion

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60266
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY CLARK MARION,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:94-CR-36-4-D
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June 13, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Anthony Clark Marion, federal prisoner # 09895-042, appeals
the district court’s dismissal for lack of jurisdiction of his
motion to reduce his sentence. He argues that he is entitled to
a reduction of his sentence pursuant to 18 U.S.C. §§ 3553 & 3582.
Absent a motion by the Government or the Bureau of Prisons, the
district court was without jurisdiction to reduce Marion’s
sentence pursuant to 18 U.S.C. § 3582(c) or Fed. R. Crim. P. 35.
Section 3742 of Title 18 does not provide a jurisdictional basis
for modifying Marion’s sentence because it is applicable only on
*
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that this opinion should not be published and is not precedent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. 00-60266
-2-
direct appeal. See United States v. Early, 27 F.3d 140, 141-42
(5th Cir. 1994). The “safety valve” provision is applicable only
to defendants who are convicted of drug offenses and found to be
less culpable than others involved in the offense. See 18 U.S.C.
§ 3553(f); U.S.S.G. § 5C1.2; United States v. Miller, 179 F.3d
961, 964-65 (5th Cir. 1999). Marion has not shown that the
district court erred in dismissing his motion for lack of
jurisdiction. See Early, 27 F.3d at 141-42. Because no
constitutional right to counsel exists in postconviction actions,
Marion’s motion for appointment of counsel is denied. See
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
For the first time in his reply brief, Marion argues that
his sentence should be vacated in view of Apprendi v. New Jersey,
530 U.S. 466 (2000). Issues raised for the first time in a reply
brief are not properly before the court and need not be
addressed. United States v. Bullock, 71 F.3d 171, 178-79 (5th
Cir. 1995).
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.