United States v. Robinson

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-10237
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LESTER HENRY ROBINSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:92-CR-365-27-D
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Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
In 1993, Lester Henry Robinson, federal prisoner # 23967-
077, was convicted following a guilty plea of conspiracy to
possess with intent to distribute at least 5 kilograms of cocaine
and at least 50 kilograms of cocaine base (crack) and sentenced
to a life term of imprisonment. Robinson appeals the district
court’s dismissal, for lack of jurisdiction, of his FED. R. CRIM.
P. 35(a) motion, challenging the drug quantity attributable to
him for sentencing purposes and his life term of imprisonment.
*
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this opinion should not be published and is not precedent except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. 04-10237
-2-
Contrary to Robinson’s argument, because Robinson’s
conspiracy offense continued well after November 1, 1987, the
version of FED. R. CRIM. P. 35(a) applicable to offenses committed
after that date applies. Cf. United States v. White, 869 F.2d
822, 826 (5th Cir. 1989) (holding that the Sentencing Guidelines,
effective November 1, 1987, applied to case in which conspiracy
offense continued after effective date of the Guidelines).
Because Robinson’s FED. R. CRIM. P. 35(a) motion was not filed
within seven days of sentencing, the district court properly
dismissed the motion for lack of jurisdiction. See FED. R. CRIM.
P. 35(a); United States v. Lopez, 26 F.3d 512, 518-20 & n.8 (5th
Cir. 1994).
AFFIRMED.