United States Court of Appeals
Fifth Circuit
FILED
April 9, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-20878
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO MACIN-HERRERA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-359-ALL
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Armando Macin-Herrera, federal prisoner # 88375-079,
appeals the district court’s denial of his motion to recall his
sentence. He argues that after he was convicted and sentenced, we
held that burglary of a building and unauthorized use of a motor
vehicle were not aggravated felonies under the amended version of
U.S.S.G. § 2L1.2. See United States v. Rodriguez-Rodriguez, 323
F.3d 317, 319 (5th Cir. 2003). He argues that under the amended
*
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this opinion should not be published and is not precedent except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.
version of U.S.S.G. § 2L1.2, his sentence, which was enhanced under
the prior version of U.S.S.G. § 2L1.2 based on his prior convic-
tions for burglary of a motor vehicle and auto theft, should be
vacated and the case remanded for resentencing.
The district court did not have authority to reduce
Macin-Herrera’s sentence under 18 U.S.C. § 3582(c)(2), 28 U.S.C.
§ 2255, or Rule 35 of the Federal Rules of Criminal Procedure.
Because the amendment to U.S.S.G. § 2L1.2 was not listed in
U.S.S.G. § 1B1.10(c), the amendment cannot be given retroactive
effect in the context of a 18 U.S.C. § 3582(c)(2) motion. See
United States v. Drath, 89 F.3d 216, 218 (5th Cir. 1996). Even if
the motion were liberally construed as a 28 U.S.C. § 2255 motion,
the district court would not have had authority to consider or
grant it because it was not filed within the applicable one-year
statute of limitations. See United States v. Thomas, 203 F.3d 350,
354-55 (5th Cir. 2000). Rule 35 provides for the correction of a
sentence on remand, the reduction of a sentence for substantial
assistance upon the Government’s motion, and for the correction of
a sentence by the sentencing court within seven days after
imposition of the sentence. FED. R. CRIM. P. 35. Therefore, Rule 35
was not applicable to Macin-Herrera’s motion. Macin-Herrera’s
motion was an unauthorized motion which the district court was
without jurisdiction to entertain. See United States v. Early, 27
2
F.3d 140, 142 (5th Cir. 1994). Accordingly, the district court’s
denial of Macin-Herrera’s motion is AFFIRMED.
3