United States v. Cotton

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 30, 1999
• Docket: 98-10531
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-10531 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VERNARDE COTTON,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:88-CR-70-1-R - - - - - - - - - -

August 27, 1999

Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Vernarde Cotton appeals the district court’s denial of his

motion to correct his sentence pursuant to Fed. R. Crim. P.

35(a)(version applicable to offenses committed prior to Nov. 1,

1987). We originally remanded the case to the district court for

a determination whether Cotton’s untimely notice of appeal should

be excused for good cause. The district court found good cause.

After he pleaded guilty to three counts of bank robbery in

1987, the district court sentenced Cotton to a pre-guidelines

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-10531 -2-

sentence of 60 years of imprisonment. The court eventually

reduced Cotton’s sentence to time-served plus three, concurrent,

five-year terms of probation. After Cotton violated his

probation, the court sentenced him to 40 years of imprisonment.

Cotton raises a plethora of challenges to the district

court’s sentencing orders. However, to obtain the relief he

seeks, Cotton must show that his sentence exceeded the court’s

statutory authority and was therefore a legal nullity. See

United States v. Henry, 709 F.2d 298, 308 (5th Cir. 1983).

Upon the revocation of Cotton’s probation, the district

court could require Cotton to serve the sentence originally

imposed or any lesser sentence which might originally have been

imposed. See 18 U.S.C. § 3653 (version applicable to offenses

committed prior to Nov. 1, 1987); United States v. Olivares-

Martinez, 767 F.2d 1135, 1139 (5th Cir. 1985). Thus, Cotton’s

sentence of 40 years of imprisonment was not unauthorized and the

district court did not err by denying Cotton’s Rule 35(a) motion.

The judgment of the district court is AFFIRMED. Cotton’s motion

to amend and supplement his reply brief out of time is DENIED.

AFFIRMED. MOTION DENIED.