United States v. Posey

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 2001
• Docket: 00-51189
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-51189 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LISTON RANDOLPH POSEY, II,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-93-CR-84-ALL -------------------- April 9, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Liston Randolph Posey, II, federal prisoner # 02528-095,

appeals the district court’s denial of his “Rule 35 Motion for

Correction of Plain Error.” Posey argues that: (1) the

forfeiture of his firearms violated his double jeopardy rights;

(2) his sentence should be vacated in view of Apprendi v. New

Jersey, 530 U.S. 466 (2000); (3) because the indictment did not

allege the quantity of marijuana, his conviction must be vacated

with prejudice to subsequent prosecution in view of Apprendi; and

(4) the district court erred in stating that this court affirmed

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-51189 -2-

in part and reversed in part in United States v. Posey, 217 F.3d

282 (5th Cir. 2000). The only relief that Posey sought in his

motion was an order vacating his conviction and sentence. The

district court did not have jurisdiction to grant the relief that

Posey sought as it was beyond the scope of this court’s remand

for return of Posey’s property. See United States v. Hass, 199

F.3d 749, 752 (5th Cir. 1999). Therefore, the district court did

not err in denying Posey’s motion. The Government’s motion to

dismiss Posey’s appeal is granted.

APPEAL DISMISSED; MOTION TO DISMISS GRANTED; ALL OTHER

OUTSTANDING MOTIONS DENIED.