United States v. Cole

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006

Charles R. Fulbruge III
Clerk
No. 05-10823
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GARY ANTHONY COLE,

Defendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:92-CR-59-1
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Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Gary Anthony Cole, federal prisoner # 22707-077, appeals the

district court’s denial of his motion for an evidentiary hearing

and sentencing modification. In his motion, Cole challenged his

1992 convictions and sentences for conspiring to obstruct, delay,

and affect commerce by robbery; obstructing, delaying, and

affecting commerce by robbery; and carrying a firearm in relation

to a crime of violence. Cole complains that the district court

failed to address the merits of his arguments.

*
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this opinion should not be published and is not precedent except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. 05-10823
-2-

Regardless of the label Cole affixed to his motion, it

challenged the constitutionality of his convictions and sentences

and should have been construed as a 28 U.S.C. § 2255 motion.

See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Cole

had filed a previous § 2255 motion and did not obtain this

court’s authorization to file a second or successive § 2255

motion. See 28 U.S.C. §§ 2244(b)(3)(A), 2255. Thus, the

district court lacked jurisdiction to consider Cole’s motion as a

§ 2255 motion. See United States v. Key, 205 F.3d 773, 774 (5th

Cir. 2000). We affirm the district court’s denial of Cole’s

motion on that basis. See United States v. Early, 27 F.3d 140,

142 (5th Cir. 1994).

Cole is warned that any further repetitious or frivolous

filings, including those attempting to circumvent statutory

restrictions on filing second or successive § 2255 motions, will

result in the imposition of sanctions against him. These

sanctions may include dismissal, monetary sanctions, and

restrictions on his ability to file pleadings in this court and

any court subject to this court’s jurisdiction.

AFFIRMED; SANCTION WARNING ISSUED.