United States v. Leasure

223 F. App'x 630

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 28, 2007
• Docket: No. 05-50603
• Status: Published

Opinion

MEMORANDUM

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Howard E. Leasure appeals from the district court’s denial of his request for sentence modification. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Leasure contends that he is entitled to re-sentencing pursuant to 18 U.S.C. § 3582. This contention is foreclosed by Carrington v. United States, 470 F.3d 920, (9th Cir.2006) (holding that § 3582(c) does not apply to a person seeking re-sentencing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)).

Leasure also contends that he is entitled to re-sentencing based on Federal Rule of Civil Procedure 60(b). However, we construe Leasure’s Rule 60(b) motion as a second or successive 28 U.S.C. § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 2648-49, 162 L.Ed.2d 480 (2005); Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir.1998) (en banc). The district court did not have jurisdiction to consider this motion because Leasure did not obtain authorization to file a successive § 2255 motion. See 28 U.S.C. § 2255; Burton v. Stewart, — U.S.-, 127 S.Ct. 793, 796-99, 166 L.Ed.2d 628 (2007).

Leasure’s request that we now authorize him to file a successive 28 U.S.C. § 2255 motion is denied because the new rules of constitutional law that he purports to rely upon have not been made retroactive by the Supreme Court. See 28 U.S.C. § 2255.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.