IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50533
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL HOUSTON ROBERSON, also known as Michael Renwick Houston,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-93-CR-109-2-JN
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March 5, 2002
Before DUHÉ, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:1
Michael Houston Roberson, federal prisoner # 60656-080,
appeals the district court’s dismissal of his FED. R. CRIM. P.
12(b)(2) and (f) motion for lack of subject-matter jurisdiction.
Roberson wishes to challenge his indictment pursuant to Apprendi v.
New Jersey, 530 U.S. 466 (2000), because the indictment did not
allege a drug quantity. He also wishes to challenge the
constitutionality of 21 U.S.C. § 841 because it removes an
essential element of the offense, drug quantity, from the jury’s
consideration.
1
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that this opinion should not be published and is not precedent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.
Our review of the district court’s dismissal for lack of
jurisdiction is de novo. See Hager v. NationsBank N.A., 167 F.3d
245, 247 (5th Cir. 1999). Regardless of the label Roberson affixed
to his motion, it challenges the constitutionality of his sentence
as imposed by the district court and was properly construed as a 28
U.S.C. § 2255 motion. See Tolliver v. Dobre, 211 F.3d 876, 877
(5th Cir. 2000); United States v. Rich, 141 F.3d 550, 551 (5th Cir.
1998). Because the motion filed purportedly under FED. R. CRIM. P.
12 was properly construed as a successive 28 U.S.C. § 2255 motion,
Roberson was required to obtain this court’s authorization to file
it. 28 U.S.C. §§ 2244(b)(3)(A), 2255. Roberson did not obtain
authorization, and the district court properly dismissed the motion
for lack of jurisdiction. The district court’s dismissal is
AFFIRMED.
2