FILED
NOT FOR PUBLICATION MAR 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50644
Plaintiff - Appellee, D.C. No. 2:87-cr-00571-SVW
v.
MEMORANDUM*
ELRADER BROWNING, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
Elrader Browning, Jr., appeals pro se from the district court’s order denying
his motion for correction of an illegal sentence under Federal Rule of Criminal
Procedure 35. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Browning first contends that he is entitled to relief under Rule 35 because
the district court did not use the phrase “continuing series of violations” in its jury
instruction on the continuing criminal enterprise count at trial. We review for
abuse of discretion the district court’s denial of the Rule 35 motion. See United
States v. Stump, 914 F.2d 170, 172 (9th Cir. 1990). Browning’s allegation of an
erroneous jury instruction is not a cognizable claim under the prior version of Rule
35, which the parties agree applies here. See Fed. R. Crim. P. 35(a) (1987); United
States v. Montalvo, 581 F.3d 1147, 1151-52 (9th Cir. 2009) (Rule 35 only allows
for correction of an illegal sentence and is not meant to permit reexamination of
trial errors.).
Browning next contends that his sentence violates the Double Jeopardy
Clause because he was sentenced for both engaging in a continuing criminal
enterprise and the predicate drug trafficking offenses. Even assuming that such a
claim is cognizable under Rule 35(a), Browning’s argument is foreclosed by
Garrett v. United States, 471 U.S. 773, 793-95 (1985).
Browning last contends that his life sentence on Count 37 exceeded the
statutory maximum because the judge, not the jury, determined the drug quantity.
Browning’s contention is untimely under Rule 35(a) because he did not bring this
claim within 120 days of the imposition of his sentence. See Montalvo, 581 F.3d at
2 13-50644
1153-54. Even if Rule 35’s filing deadline is subject to equitable tolling, as
Browning argues, he has not shown that he is entitled to the more than 20 years of
tolling needed to render his claim timely.
AFFIRMED.
3 13-50644