United States v. Rodriguez

Opinion

United States Court of Appeals Fifth Circuit F I L E D May 2, 2003 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-51245 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OCTAVIO RODRIGUEZ,

Defendant-Appellant.

------------------------------------------------------------ Appeal from the United States District Court for the Western District of Texas USDC No. P-00-CR-133-2 ------------------------------------------------------------

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Octavio Rodriguez, federal prisoner # 05119-180, has appealed the district court’s denial of

his “Motion for Downward Departure Based on Post-Conviction Rehabilitation and Alien Status.”

He contends that the district court should have reduced his sentence based on his “excellent” post-

conviction rehabilitation efforts and the fact that his alien status makes him ineligible for certain prison

programs.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The district court is prohibited from modifying a term of imprisonment once it has been

imposed except in certain limited circumstances. See 18 U.S.C. § 3582(c). Rodriguez’s post-

conviction motion for downward departure does not fall under any of these circumstances; thus, it

was unauthorized and without a jurisdictional basis. See United States v. Early, 27 F.3d 140, 141-42

(5th Cir. 1994). The appeal is without arguable merit and is DISMISSED AS FRIVOLOUS.

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. Rodriguez is WARNED

that future frivolous appeals may result in the imposition of sanctions.

APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED.

-2-