United States v. Powell

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2000
• Docket: 99-10407
• Status: Unpublished

Opinion

No. 99-10407 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10407 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LARRY GENE POWELL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:98-CR-242-1-R -------------------- April 11, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Larry Gene Powell pleaded guilty to one count of conspiring

to use the mail with the intent to commit murder-for-hire in

violation of 18 U.S.C. § 1958. Following his conviction and

sentencing, Powell filed, pro se, a document entitled “JUDICIAL

NOTICE DEFENDANTS CLAIM OF MANIFEST INJUSTICE–VOIDS & WITHDRAWS

GUILTY PLEA” on the same day he filed a notice of appeal from the

judgment of conviction. The district court denied Powell’s

claim, but he did not file a notice appeal from that denial.

We do not have jurisdiction over Powell’s appeal because

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-10407 -2-

Powell has failed to file a notice of appeal regarding the denial

of this claim. See United States v. Carr, 979 F.2d 51, 55 (5th

Cir. 1992). Although Powell filed three notices of appeal, each

of these notices designated other rulings as the subject of the

appeal but failed to specify the denial of the postjudgment

motion as is required to invoke our jurisdiction. Fed. R. App.

P. 3(c)(1)(B).

Furthermore, Powell’s motion, which is construed as a motion

to withdraw his guilty plea, was unauthorized and without a

jurisdictional basis. See United States v. Early, 27 F.3d 140,

141 (5th Cir. 1994). After sentencing, a plea may be set aside

only on direct appeal or by motion under 28 U.S.C. § 2255. Id.

Accordingly, the district court lacked jurisdiction to entertain

the filing. United States v. Cook, 670 F.2d 46, 48 (5th Cir.

1982).

As Powell does not brief any issues other than the denial of

the motion to withdraw his plea, they are deemed abandoned. See

United States v. Heacock, 31 F.3d 249, 258 (5th Cir. 1994); see

also Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993)(only

issues presented and argued in the brief are addressed on

appeal).

This appeal is without arguable merit and thus frivolous.

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is

therefore DISMISSED. 5th Cir. R. 42.2. Counsel is warned that

pursuing frivolous appeals invites the imposition of sanctions.

See United States v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994).

APPEAL DISMISSED; SANCTION WARNING ISSUED.