United States v. Espericueta

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-20888 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISRAEL ESPERICUETA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. CR H-90-428-12 - - - - - - - - - - April 15, 1997 Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Israel Espericueta, federal prisoner No. 59164-079, appeals

the denial of his motion to modify his sentence under 18 U.S.C.

§ 3582(c)(2) based on an allegedly erroneous application of the

sentencing guidelines. As Espericueta concedes, a § 3582(c)(2)

motion is not the appropriate vehicle for raising this issue

because it is not based on a retroactive application of a

subsequently lowered guideline range. United States v. Shaw, 30

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-20888 - 2 -

F.3d 26, 29 (5th Cir. 1994).

Contrary to Espericueta’s assertion, the district court

could not have entertained his claims by construing them as a

successive motion under 28 U.S.C. § 2255, because the

Antiterrorism and Effective Death Penalty Act of 1996 requires

that this court certify such a successive motion before it may be

filed in the district court. See 28 U.S.C. § 2244(b)(3)(A).

APPEAL DISMISSED. 5th Cir. R. 42.2.