United States v. Julio Jairo Velez-Rendon

Eleventh Circuit

United States v. Julio Jairo Velez-Rendon

845 F.2d 304, 1988 U.S. App. LEXIS 6432, 1988 WL 39682

CourtCourt of Appeals for the Eleventh Circuit

DecidedMay 17, 1988

Docket87-5494

StatusPublished

Cited by5 cases

This text of 845 F.2d 304 (United States v. Julio Jairo Velez-Rendon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Julio Jairo Velez-Rendon, 845 F.2d 304, 1988 U.S. App. LEXIS 6432, 1988 WL 39682 (11th Cir. 1988).

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Opinion

PER CURIAM:

Velez-Rendon appeals from the district court’s denial of his “Application Pursuant to Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure.” At the time the district court entered its order, the court did not have the benefit of our opinion in United States v. Fischer, 821 F.2d 557 (11th Cir.1987), in which we held the following:

Fed.R.Crim.P. 32, standing alone, does not provide the district court with jurisdiction to hear a motion making a post-judgment collateral attack on one’s sentence for a Rule 32 violation.

Id. at 558.

Nor can we consider appellant’s application as a motion to correct a sentence imposed in an illegal manner under Fed.R. Crim.P. 35(a) because it was not filed within the required 120 days. If we were to treat the application as a petition under 28 U.S.C. § 2255 we would have to find that Velez-Rendon’s claims are not cognizable in a habeas corpus proceeding because the errors Velez-Rendon complains of do not qualify as “ ‘fundamental defect[s] which inherently result[J m a complete miscarriage of justice.’ ” Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)); see Hill, 368 U.S. at 424, 82 S.Ct. at 468 (sentencing court’s failure to comply with Fed.R.Crim.P. 32(a) not cognizable under § 2255).

Accordingly, the case is remanded to the district court to dismiss for lack of jurisdiction.

REMANDED.

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PER CURIAM:

Velez-Rendon appeals from the district court’s denial of his “Application Pursuant to Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure.” At the time the district court entered its order, the court did not have the benefit of our opinion in United States v. Fischer, 821 F.2d 557 (11th Cir.1987), in which we held the following:

Fed.R.Crim.P. 32, standing alone, does not provide the district court with jurisdiction to hear a motion making a post-judgment collateral attack on one’s sentence for a Rule 32 violation.

Id. at 558.

Nor can we consider appellant’s application as a motion to correct a sentence imposed in an illegal manner under Fed.R. Crim.P. 35(a) because it was not filed within the required 120 days. If we were to treat the application as a petition under 28 U.S.C. § 2255 we would have to find that Velez-Rendon’s claims are not cognizable in a habeas corpus proceeding because the errors Velez-Rendon complains of do not qualify as “ ‘fundamental defect[s] which inherently result[J m a complete miscarriage of justice.’ ” Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)); see Hill, 368 U.S. at 424, 82 S.Ct. at 468 (sentencing court’s failure to comply with Fed.R.Crim.P. 32(a) not cognizable under § 2255).

Accordingly, the case is remanded to the district court to dismiss for lack of jurisdiction.

REMANDED.

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845 F.2d 304, 1988 U.S. App. LEXIS 6432, 1988 WL 39682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-julio-jairo-velez-rendon-ca11-1988.

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