United States v. Jesus Arritols

                                                              [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                No. 10-12686                  ELEVENTH CIRCUIT
                            Non-Argument Calendar                 JUNE 22, 2011
                          ________________________                 JOHN LEY
                                                                    CLERK
                    D.C. Docket No. 1:93-cr-00606-DTKH-2

UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                      versus

JESUS ARRITOLA,

                                                            Defendant - Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________
                                (June 22, 2011)

Before EDMONDSON, HULL and MARTIN, Circuit Judges.



PER CURIAM:

     Jesus Arritola, a federal prisoner proceeding pro se, appeals the district
court’s dismissal for lack of jurisdiction of his motion for a sentence

modification.* No reversible error has been shown; we affirm.

       Arritola filed a post-conviction motion asking the district court to depart

downward on his sentence (imposed for a drug crime) based on the harsh pre-trial

conditions he faced in Colombia before being extradited to the United States and

based on collateral immigration consequences. On appeal, Arritola repeats these

arguments.

       Arritola has shown no basis for the district court’s exercise of jurisdiction

over his motion. The authority he cited in support of his motion -- 28 U.S.C. §

994(f) -- simply directs that the Sentencing Commission devote “particular

attention” to “reducing unwarranted sentencing disparities” in promulgating its

guidelines; it does not provide a remedy to reduce a sentence based on the

circumstances of pretrial detention.

       Because Arritola was unentitled to relief under section 994(f), we must

decide whether his motion is “cognizable under a different remedial statutory

framework.” United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990)

(explaining that federal courts must “look behind the label of a motion filed by a



       *
         Whether a district court has “jurisdiction over a particular case is a question of law
subject to plenary review.” United States v. Maduno, 40 F.3d 1212, 1215 (11th Cir. 1994).

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pro se inmate”). But even considering other mechanisms for sentence

modifications, Arritola has failed to demonstrate a basis for the district court’s

jurisdiction.

      Arritola cited no amendment to the Sentencing Guidelines that would allow

for a sentence reduction under 18 U.S.C. § 3582(c)(2). He already has filed a 28

U.S.C. § 2255 motion to vacate his sentence that the district court denied on the

merits, and he has received no permission to file a second motion. See 28 U.S.C.

§ 2255(h); Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)

(explaining that a district court lacks jurisdiction to consider a criminal

defendant’s motion as a “second or successive” section 2255 motion without

certification). Arritola has not timely alleged “arithmetical, technical, or other

clear error” in his sentence that would have allowed the district court to correct his

sentence under Fed.R.Crim.P. 35(a). And the government has filed no motion

based on substantial assistance that would entitle him to relief under Rule 35(b).

      Because Arritola cannot show a basis for the district court’s jurisdiction

over his motion to reduce his sentence, we affirm.

      AFFIRMED.




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