United States v. Hart

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 13, 1999
• Docket: 98-30486
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30486 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH L. HART,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 94-CR-30038-3 - - - - - - - - - -

July 13, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Kenneth L. Hart appeals the district court’s denial of his

motion filed pursuant to former Fed. R. Crim. P. 35. Hart

contends that the district court erred in determining the amount

of restitution owed and in designating the victim.

At any stage of judicial proceedings, federal courts may

question, sua sponte, whether subject matter jurisdiction is

proper. In re Bass, 171 F.3d 1016, 1021 (5th Cir. 1999). A

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-30486 -2-

district court’s holding that it has jurisdiction is a legal

determination, which we review de novo. Id.

Hart concedes that he did not file his motion within the

120-day period prescribed by former Rule 35. The time limit

imposed by former Rule 35(b) was jurisdictional, and the district

court was without authority to extend the period. See In re

United States, 900 F.2d 800, 803 (5th Cir. 1990).

Former Rule 35(a) allowed the sentencing court to “correct

an illegal sentence at any time.” United States v. Lopez, 26

F.3d 512, 517 n.6 (5th Cir. 1994). An illegal sentence is one

that the judgment of conviction does not authorize. United

States v. Morgan, 346 U.S. 502, 506 (1954).

Hart, at most, alleges error in his sentence. He does not

request correction of an illegal sentence. Accordingly, the

district court was without jurisdiction to consider Hart’s

motion. Hart’s appeal is DISMISSED.