IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30610
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENNY RAY COLLINS, also known as Chop Collins,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 98-CR-30010-17
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February 19, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Benny Ray Collins, federal prisoner # 09912-035, appeals the
district court’s denial of his motion to take judicial notice of
facts under 18 U.S.C. § 3742(f)(1). Collins’s motion stems from
his guilty-plea conviction for conspiracy to possess with intent
to distribute five kilograms or more of cocaine hydrochloride for
which he received a 151-month sentence. He did not appeal his
sentence. The present motion asserts that his case should be
remanded for resentencing and his sentence should be reduced
*
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that this opinion should not be published and is not precedent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. 02-30610
-2-
because two of his prior convictions should have been excluded
from the guideline sentencing computations.
Collins’s motion was not authorized by 18 U.S.C.
§ 3742(f)(1), which permits an appellate court to remand a case
on direct appeal for further sentencing proceedings when it is
determined that a sentence “was imposed in violation of law or
imposed as a result of an incorrect application of the sentencing
guidelines.” 18 U.S.C. § 3742(f)(1). Collins’s motion should
have been denied for lack of jurisdiction, United States v.
Early, 27 F.3d 140, 142 (5th Cir. 1994), and we affirm on that
basis.
AFFIRMED.