United States v. Clark

Case: 21-10384 Document: 00516237860 Page: 1 Date Filed: 03/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 14, 2022
No. 21-10384
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Dion Clark,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-936
Before Jones, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Dion Clark, federal prisoner # 55856-177, seeks a certificate of
appealability (COA) to appeal the district court’s partial denial of his
28 U.S.C. § 2255 motion challenging his convictions of conspiracy to commit
interference with commerce by robbery and brandishing a firearm during and
in relation to a crime of violence.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10384 Document: 00516237860 Page: 2 Date Filed: 03/14/2022
No. 21-10384
This court must examine the basis of its own jurisdiction, sua sponte,
if necessary. Trent v. Wade, 776 F.3d 368, 387 (5th Cir. 2015). “An appeal
may be taken to the court of appeals from the order entered on the [§ 2255]
motion as from a final judgment on application for a writ of habeas corpus.”
§ 2255(d). Here, however, Clark’s appeal is premature as he filed it before
the district court resentenced him. As such, we lack jurisdiction. See
Andrews v. United States, 373 U.S. 334, 340 (1963).
Accordingly, a COA is DENIED and this matter is DISMISSED
for lack of jurisdiction.
2