United States v. Johnson

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 15, 2008 No. 06-11392 Conference Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. DAVID ANTOINE JOHNSON Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CR-185-1 Before PRADO, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM:* David Antoine Johnson, federal prisoner # 27125-177, appeals the district court’s dismissal of his motion to reduce his sentence, purportedly filed pursuant to 18 U.S.C. § 3553(a)(6), (b)(1)-(2). The cited subsections do not authorize such a motion. Because Johnson’s motion also did not fall under any of the provisions of 18 U.S.C. § 3582(c), the motion was unauthorized and without jurisdictional basis. See United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994). Moreover, * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-11392 it cannot be construed as a 28 U.S.C. § 2255 motion to vacate because Johnson has already filed at least one § 2255 motion and the current motion is subject to the jurisdictional bar of the successive-motion provision, 28 U.S.C. § 2244(b)(3)(A). See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED. 2