United States v. Jaimes-Jaimes

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 22, 2003
• Docket: 02-51055
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 22, 2003

Charles R. Fulbruge III Clerk No. 02-51055 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTURO JAIMES-JAIMES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-99-CR-155-All-JN --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Arturo Jaimes-Jaimes (Jaimes), federal prisoner No. 95190-

080, has appealed the district court’s denial of his “Motion for

Downward Departure Based on Post-Conviction Rehabilitation and

Alien Status.” He contends that the district court had

jurisdiction to reduce his sentence pursuant to United States v.

Galante, 111 F.3d 1029, 1034 (2d Cir. 1997) and other cases which

have held that a district court may consider post-conviction

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-51055 -2-

rehabilitation in determining whether to grant a downward

departure.

The district court is prohibited from modifying a term of

imprisonment once it has been imposed except in certain limited

circumstances. 18 U.S.C. § 3582(c). Jaimes’ post-conviction

motion for downward departure does not fall under any provision

of 18 U.S.C. § 3582(c) and, thus, was unauthorized and without a

jurisdictional basis. See United States v. Early, 27 F.3d 140,

141-42 (5th Cir. 1994). The appeal is without arguable merit.

Consequently, it is DISMISSED AS FRIVOLOUS. Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. Jaimes is

WARNED that future frivolous appeals may result in the imposition

of sanctions.

APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED.