United States v. Gallo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20998
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALVARO GALLO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-89-CR-12-3
--------------------
June 28, 2001
Before GARWOOD, HIGGINBOTHAM, and PARKER, Circuit Judges.
PER CURIAM:1
Jose Alvaro Gallo, federal prisoner # 48384-079, argues that
the district court erred in denying his motion for
reconsideration of the district court’s denial of his motion to
correct his sentence in light of intervening case law and
amendments to the sentencing guideline defining relevant conduct.
Gallo also argues that the district court erred in denying his
motion to supplement his motion for reconsideration based on the
Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466(2000) and Jones v. United States, 526 U.S. 227 (1999).
1
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this opinion should not be published and is not precedent except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. 00-20998
-2-
Insofar as Gallo’s motions for reconsideration challenge his
conviction and sentence, the district court correctly construed
them as successive 28 U.S.C. § 2255 motions. See United States
v. Rich, 141 F.3d 550, 551 (5th Cir. 1998). Because we are
merely reviewing the district court’s determination that it
lacked jurisdiction to address the successive motions and not
reviewing the merits of Gallo’s underlying § 2255 claims, it is
not necessary to remand the case to the district court for a
ruling on Gallo’s motion for a certificate of appealability
(COA). See Trevino v. Johnson, 168 F.3d 173, 176-77 (5th Cir.)
cert. denied, 527 U.S. 1056 (1999).
The district court properly dismissed Gallo’s motions for
lack of jurisdiction insofar as the motions sought relief
pursuant to 28 U.S.C. § 2255 based on Gallo’s failure to satisfy
the certification requirements. See Rich, 141 F.3d at 551; 28
U.S.C. §§ 2244(b), 2255. Because the district court lacked
jurisdiction over Gallo’s § 2255 claims, this court lacks
jurisdiction over the appeal. Thus, the appeal from the denial
of the § 2255 claims is DISMISSED.
Insofar as Gallo’s appeal may be construed as an application
to this court for permission to file a successive motion, his
request is DENIED. Gallo has failed to demonstrate that the
intervening case law that he is relying upon announced new rules
of constitutional law made retroactive to cases on collateral
No. 00-20998
-3-
review by the Supreme Court. See In re: Tatum, 233 F.3d 857,
858-59 (5th Cir. 2000); 28 U.S.C. §§ 2244(b), 2255.2
Insofar as Gallo is seeking a reduction of his sentence
pursuant to the provisions of 18 U.S.C. § 3582(c)(2), he is not
entitled to relief because the amendments to U.S.S.G. § 1B1.3 that
he is relying upon, amendments 439 and 503, have not been applied
retroactively. See U.S.S.G. § 1B1.10(c), p.s.; United States v.
Drath, 89 F.3d 216, 218 (5th Cir. 1996). The district court’s
denial of Gallo’s 18 U.S.C. § 3582(c)(2) motion is
AFFIRMED.
2
We note in passing that Gallo was convicted of counts
alleging that he conspired to possess cocaine with intent to
distribute it and possessed cocaine with intent to distribute it.
He was also convicted of money laundering. He was sentenced to
concurrent terms of 188 months’ imprisonment and 60 months’
supervised release on each of the three counts. The sentence of
188 months did not exceed the 240 months statutory maximum
applicable for the cocaine offenses even where quantity is not
shown. 21 U.S.C. § 841(b)(1)(C). See United States v. Doggett,
230 F.3d 160, 165 (5th Cir. 2000). (The statutory maximum for
the money laundering offense is likewise 240 months without
regard to amounts. 18 U.S.C. § 1956(a)(1). However, supervised
release would likely be limited to 36 months unless 500 grams or
more were involved in the cocaine amounts. The total confinement
and supervised release imposed (188 months’ confinement plus 60
months’ supervised release equals 248 months) is less than that
imposable without any showing of quantity (240 months’
confinement plus 36 months’ supervised release equals 276
months). We also observe that the indictment did allege that the
conspiracy and possession were of “in excess of five kilograms of
cocaine, a Schedule II narcotic controlled substance.”