United States v. Joseph John Fournier

Fifth Circuit

United States v. Joseph John Fournier

483 F.2d 68, 1973 U.S. App. LEXIS 8623

CourtCourt of Appeals for the Fifth Circuit

DecidedJuly 24, 1973

Docket73-1482

StatusPublished

Cited by4 cases

This text of 483 F.2d 68 (United States v. Joseph John Fournier) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Joseph John Fournier, 483 F.2d 68, 1973 U.S. App. LEXIS 8623 (5th Cir. 1973).

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Opinion

PER CURIAM:

On August 26, 1971, Appellant Four-nier pleaded guilty to a charge of knowingly transporting a weapon in interstate commerce in violation of 18 U.S.C. A. §§ 922(g)(1), 924(a). On September 17, 1971, the District Court sentenced Fournier to a term of three years in prison.

Although Fournier appealed neither his conviction nor his sentence, he did file a motion under F.R.Crim.P. 35 to correct an illegal sentence. His main contention was that it was a violation of Equal Protection for him to be charged under Section 922 when he could have been charged under 18 U.S.C.A. App. § 1202(a)(1) with a maximum punishment of two years. Initially, on May 11, 1972, the District Court was impressed with this argument and reduced his sentence to two years. On reconsideration at the urging of the Government, however, the District Court, on May 26, 1972, vacated its order of May 11, 1972. The Court vacated this order because, on the authority of United States v. Chakmakis, 5 Cir., 1971, 449 F.2d 315, the original three year sentence was legal.. Therefore, the Court was without jurisdiction to entertain a Rule 35 motion. See F.R.Crim.P. 45(b); United States v. Granville, 5 Cir., 1972, 456 F.2d 1073. On appeal, we affirmed. United States v. Fournier, 5 Cir., 1972, 468 F.2d 952.

Fournier filed another Rule 35 motion on January 12, 1973. The District Court denied all relief and Fournier appeals. We affirm. Our prior opinion is the law of the case.

Affirmed.

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PER CURIAM:

On August 26, 1971, Appellant Four-nier pleaded guilty to a charge of knowingly transporting a weapon in interstate commerce in violation of 18 U.S.C. A. §§ 922(g)(1), 924(a). On September 17, 1971, the District Court sentenced Fournier to a term of three years in prison.

Although Fournier appealed neither his conviction nor his sentence, he did file a motion under F.R.Crim.P. 35 to correct an illegal sentence. His main contention was that it was a violation of Equal Protection for him to be charged under Section 922 when he could have been charged under 18 U.S.C.A. App. § 1202(a)(1) with a maximum punishment of two years. Initially, on May 11, 1972, the District Court was impressed with this argument and reduced his sentence to two years. On reconsideration at the urging of the Government, however, the District Court, on May 26, 1972, vacated its order of May 11, 1972. The Court vacated this order because, on the authority of United States v. Chakmakis, 5 Cir., 1971, 449 F.2d 315, the original three year sentence was legal.. Therefore, the Court was without jurisdiction to entertain a Rule 35 motion. See F.R.Crim.P. 45(b); United States v. Granville, 5 Cir., 1972, 456 F.2d 1073. On appeal, we affirmed. United States v. Fournier, 5 Cir., 1972, 468 F.2d 952.

Fournier filed another Rule 35 motion on January 12, 1973. The District Court denied all relief and Fournier appeals. We affirm. Our prior opinion is the law of the case.

Affirmed.

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Bluebook (online)

483 F.2d 68, 1973 U.S. App. LEXIS 8623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-john-fournier-ca5-1973.

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