United States v. Herrero

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20618 c/w
No. 00-20619
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERMILO HERRERO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-1018
USDC No. H-95-CR-231-3
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April 27, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Currently before the court in No. 00-20618 is the notice of
appeal filed by Hermilo Herrero, federal prisoner # 70135-079, from
the district court’s dismissal without prejudice of his 28 U.S.C.
§ 2255 motion as successive. The notice of appeal has been
construed as a request for a certificate of appealability (COA)
pursuant to Fed. R. App. P. 22(b). Also before the court in No.
00-20619 is Herrero’s appeal from the district court’s denial of
his 18 U.S.C. § 3582(c)(2) motion for a reduction of sentence.
*
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that this opinion should not be published and is not precedent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. 00-20618 c/w
No. 00-20619
-2-
Because both appeals share the same record, appeal Nos. 00-20618
and 00-20619 are hereby CONSOLIDATED. See Fed. R. App. P. 3(b)(2).
Herrero argues in No. 00-20618 that the district court erred
in construing his 28 U.S.C. § 2255 motion, which attacked his prior
state court convictions, as successive. Because Herrero has not
shown why he could not have raised this challenge in his first 28
U.S.C. § 2255 motion, he has failed to demonstrate that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473,
484 (2000). Accordingly, the request for a COA in No. 00-20618 is
DENIED.
Herrero argues in No. 00-20619 that the district court erred
in applying the 1995 version of the Sentencing Guidelines, which
incorporated amendment 528, to find that he was a career offender.
He is not seeking relief as a result of a subsequent amendment that
has lowered his guidelines range; he instead is attacking the
district court’s application of the guidelines in his case. Such
claims are not cognizable under 18 U.S.C. § 3582(c)(2). The
district court therefore did not abuse its discretion in denying
the motion. United States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994).
The judgment of the district court in No. 00-20619 is AFFIRMED.