United States v. Basey

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-50010
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
BEN LEE BASEY
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:85-CR-116-3
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Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Ben Lee Basey, federal prisoner # 34146-080, appeals the
district court’s dismissal of his motion to reduce his sentence
pursuant to FED. R. CRIM. P. 35(a). We agree with Basey that the
district court erred in construing Basey’s Rule 35(a) motion as a
28 U.S.C. § 2255 motion and dismissing it as successive. A Rule
35(a) motion is considered to be part of the original criminal
proceeding, rather than a collateral attack on the sentence. See
*
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this opinion should not be published and is not precedent except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. 05-50010
-2-
United States v. Scott, 672 F.2d 454, 456 n.3 (5th Cir. 1982);
United States v. Shillingford, 586 F.2d 372, 375 (5th Cir. 1978).
Basey is also correct that, because his offense was
committed prior to November 1, 1987, the version of Rule 35 in
effect at that time applies to him, a point that the Government
concedes. See United States v. Pineda, 988 F.2d 22, 23 n.2 (5th
Cir. 1993). Under that version of the rule, a district court
“may correct an illegal sentence at any time and may correct a
sentence imposed in an illegal manner within the time provided
herein for the reduction of sentence.” FED. R. CRIM. P. 35(a)
(1982) (emphasis added).
For the foregoing reasons, the judgment of the district
court is vacated, and this matter is remanded for further
proceedings consistent with this opinion. See In re Argo Fin.,
Inc., 337 F.3d 516, 525 (5th Cir. 2003). We express no view
regarding the merits of the claims Basey seeks to raise via his
Rule 35 motion.
VACATED AND REMANDED.