United States v. Chisholm

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 9, 2009
No. 08-30660
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

CHADWICK DENARD CHISHOLM,

Defendant-Appellant

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:94-CR-19-1

Before GARZA, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Chadwick Denard Chisholm, federal prisoner # 08652-35, is serving a 292-
month sentence for conspiracy to possess and possession with intent to distribute
cocaine base. Chisholm filed a motion, styled as a F ED. R. C IV. P. 60(b) motion
to reopen his 28 U.S.C. § 2255 proceedings. Chisholm’s § 2255 motion was
denied in 1997, but he sought to reopen the matter to address an alleged
jurisdictional defect in the proceeding pursuant to Gonzalez v. Crosby, 545 U.S.
524, 531-33 (2005). The district court construed Chisholm’s pleading as an

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-30660

unauthorized successive § 2255 motion and dismissed the motion for lack of
jurisdiction.
Chisholm argues that, because the indictment against him failed to allege
a drug quantity, the indictment was defective and the district court lacked
jurisdiction to sentence him to more than the 20-year statutory maximum set
forth in 21 U.S.C. § 841(b)(1)(C). This specific argument constitutes a new
theory of relief. Although Chisholm challenged the adequacy of the district court
factual findings with respect to drug quantity in his § 2255 motion, he did not
raise the specific argument he asserts here. Accordingly, the district court did
not err in construing his motion as an unauthorized successive § 2255 motion.
See Gonzalez, 545 at 531, 532 & nn.4-5.
AFFIRMED.