IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41429
Summary Calendar
BOBBY JAMES CAMMOCK,
Petitioner-Appellant,
versus
BUREAU OF PRISONS; WOODS, Warden,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-96-CV-196
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February 10, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Within ten days of the entry of the final judgment
dismissing the 28 U.S.C. § 2241 petition filed by Bobby James
Cammock, federal prisoner #60096-080, Cammock filed a “motion to
supplement initial § 2241 habeas corpus petition.” The record
does not indicate that the district court disposed of the motion.
A motion challenging the correctness of the judgment is
treated as a Fed. R. Civ. P. 59 motion for purposes of Fed.
*
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that this opinion should not be published and is not precedent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. 97-41429
-2-
R. App. P. 4(a)(4)(B)(i), regardless of the label applied to the
motion, if it is made within the ten-day limit for Rule 59
motions. Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir.
1994); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d
665, 667 (5th Cir. 1986) (en banc). Rule 4(a)(4)(B)(i), Fed.
R. App. P., provides that, if a timely motion is made pursuant to
Rule 59(e), a notice of appeal filed after entry of the judgment,
but before disposition of the motion, is ineffective until the
entry of the order disposing of the motion.
Cammock’s “motion to supplement” must be treated as a Rule
59(e) motion because the motion was filed within ten days of the
entry of the judgment dismissing his § 2241 and arguably
challenged the district court’s reliance on Venegas v. Henman.**
See Mangieri, 29 F.3d at 1015 n.5; see United States v. Gallardo,
915 F.2d 149, 150 n.2 (5th Cir. 1990). As the Rule 59(e) motion
has not yet been disposed of, Cammock’s notice of appeal is
ineffective. Accordingly, we must return the record to the
district court for the limited purpose of permitting the district
court to decide the motion as expeditiously as possible. See
Burt v. Ware, 14 F.3d 256, 260-61 (5th Cir. 1994).
**
This court in Venegas held that Congress intended to give
the BOP discretion to exclude from eligibility for § 3621(e)’s
early release incentive violent offenses even if violence was not
a specific element of the offense. Venegas v. Henman, 126 F.3d
760, 763 (5th Cir. 1997), cert. denied, 118 S. Ct. 1679 (1998).
The Venegas court concluded that the BOP’s decision not to
include as a nonviolent offense drug convictions where the
sentences were enhanced for possession of a dangerous weapon was
consistent with the letter and spirit of the BOP’s authority in
§ 3621(e). Id. at 765.
No. 97-41429
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Following entry of the district court’s order on Cammock’s
Rule 59(e) motion, Cammock is directed to file an amended notice
of appeal within the prescribed period in Fed. R. App. P.
4(a)(1), designating the orders or judgments from which he wishes
to appeal. See Fed. R. App. P. 4(a)(4)(B)(ii).
REMANDED.