United States v. Martinez-Gil

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50759
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT MARTINEZ-GIL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-91-CR-318-4
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Following a jury trial, Robert Martinez-Gil, prisoner number
24434-149, was convicted of one count of conspiracy to possess
heroin and cocaine with intent to deliver. The district court
sentenced him to life in prison. This court affirmed his
conviction and sentence on direct appeal, and his 28 U.S.C. § 2255motion to vacate his sentence was unsuccessful. Martinez-Gil’s
numerous motions seeking authorization to file a successive 28
U.S.C. § 2255 motion were likewise unavailing. Martinez-Gil then
*
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that this opinion should not be published and is not precedent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. 03-50759
-2-
filed a “motion to dismiss 21 U.S.C. § 851 enhancement information
for lack of service” in which he argued that the enhancement
information upon which his sentence was based should be dismissed
for want of proper service. The district court determined that
Martinez-Gil was attempting to bring a successive motion to vacate
his sentence without having received this court’s authorization to
do so. The district court thus dismissed the case. Martinez-Gil
now appeals the dismissal of this motion. He argues that the
district court erred in classifying his motion as properly sounding
in 28 U.S.C. § 2255, and he also moves this court for a writ of
mandamus ordering the district court to vacate his life sentence.
Martinez-Gil has not shown that the district court erred in
determining that his motion, which raised a thinly disguised
challenge to his sentence, was really an attempt to bring an
unauthorized successive 28 U.S.C. § 2255 motion. See Tolliver v.
Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Because Martinez-Gil had
not obtained this court’s authorization to file this motion, the
district court did not err in dismissing Martinez-Gil’s case. See
United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). The
judgment of the district court is AFFIRMED, and Martinez-Gil’s
motion for a writ of mandamus is DENIED.