United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-11129
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL EARL HILL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-361-ALL
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Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Michael Earl Hill, federal prisoner # 27877-177, appeals the
district court’s denial of his FED. R. CIV. P. 60(b)(4) motion for
relief from judgment. Following his guilty plea to one count of
securities fraud and one count of mail fraud, Hill was sentenced
to a term of imprisonment of 60 months on each count, to be
served consecutively and to be followed by a three-year term of
supervised release.
*
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that this opinion should not be published and is not precedent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. 05-11129
-2-
Hill argues that, in light of Blakely v. Washington, 542
U.S. 296 (2004), and United States v. Booker, 543 U.S. 220
(2005), his sentence was unconstitutionally enhanced, that the
enhancement of his sentence caused a structural error in his
sentencing hearing, and that the district court lacked
jurisdiction to enhance Hill’s sentence. Because Hill is
challenging the validity of his underlying sentence, his FED. R.
CIV. P. 60(b)(4) motion should have been construed as a
successive 28 U.S.C. § 2255 motion. See Fierro v. Johnson, 197
F.3d 147, 151 (5th Cir. 1999); cf. Gonzalez v. Crosby, 125 S. Ct.
2641, 2651 (2005). Prior to filing the successive motion, Hill
was required to obtain authorization to file the successive
motion. See 28 U.S.C. §§ 2244(b)(3)(A), 2255. Because Hill
failed to obtain such authorization, the district court did not
err in denying the motion. See Scott v. Johnson, 227 F.3d 260,
262 (5th Cir. 2000).
AFFIRMED.