United States v. James Clark

586 F. App'x 161

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 2, 2014
• Docket: 14-10159
• Status: Unpublished

Opinion

PER CURIAM: *

Reverend James Cornell Clark, federal prisoner # 13238-057, filed an 18 U.S.C. § 3582(c)(2) motion in the district court, seeking a reduction in the 120-month sentence that was imposed following his conviction for importation of an alien for immoral purposes. The district court denied the motion, and Clark now appeals. Clark has also moved for leave to amend his appellate brief to include additional requests for relief, and that motion is granted.

Clark argues here, as he did in the district court, that his sentence should be reduced because his guidelines sentencing range was increased by enhancements triggered by judicially found facts in violation of Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 2163, 186 L.Ed.2d 314 (2013). The district court properly denied Clark’s motion because his Alleyne-based challenge to his sentence is beyond the scope of § 3582(c)(2). See United States v. Hernandez, 645 F.3d 709, 712 (5th Cir.2011); United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir.1995). In addition to his Alleyne-based sentencing challenge, Clark raises in his appellate brief numerous other challenges to his underlying conviction and sentence, none of which are based on any amendments to the Sentencing Guidelines. Because these other challenges are raised for the first time in Clark’s appellate brief, we decline to consider them. See United States v. Pardue, 36 F.3d 429, 431 (5th Cir.1994).

The Government moves for the dismissal of Clark’s newly raised arguments, for summary affirmance, and, alternatively, for an extension of time for filing an appellate brief. We deny each of those motions and affirm the judgment of the district court denying relief under § 3582(c)(2).

AFFIRMED; MOTION TO AMEND APPELLANT’S BRIEF GRANTED; ALL OTHER OUTSTANDING MOTIONS DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.