United States v. Arzola-Amaya

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 9, 2003 Charles R. Fulbruge III Clerk No. 03-50159 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus AUDELIO ARZOLA-AMAYA, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-87-CR-162-1-H - - - - - - - - - - Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges. PER CURIAM:* Audelio Arzola-Amaya, federal prisoner # 38898-080, appeals the district court’s denial of his motion invoking the version of FED. R. CRIM. P. 35 applicable to offenses committed prior to November 1, 1987. Because Arzola-Amaya’s argument concerning his failure to be properly arraigned does not constitute a challenge to his sentence, the district court did not err in construing the Rule 35 motion as a disguised attempt to file an unauthorized successive 28 U.S.C. § 2255 motion. Accordingly, we AFFIRM. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-50159 -2- Arzola-Amaya’s motions for the appointment of counsel and to expedite his appeal are DENIED. AFFIRMED; MOTIONS DENIED.