[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14289 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 7, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:01-cr-00548-PCH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN COLE,
a.k.a. John Archie Cole,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 7, 2012)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
John Cole, a federal prisoner proceeding pro se, appeals the district court’s
denial of his motion to correct his sentence under Federal Rule of Criminal
Procedure 35(a). We agree with the district court’s finding that it lacked
jurisdiction to consider the motion and, accordingly, we affirm.
Cole was originally convicted in 2001 of firearm and drug offenses and
sentenced to life imprisonment.1 This court affirmed his convictions on direct
appeal in 2002. United States v. Cole, 45 Fed. App’x 885 (11th Cir. 2002)
(unpublished). Between 2002 and 2010, Cole filed numerous motions challenging
his convictions and sentences, including one motion to vacate under 28 U.S.C.
§ 2255.
In August 2011, Cole filed the instant motion to correct his sentence under
Rule 35(a), challenging the use of two of his prior state court convictions to
enhance his sentence.2
The district court found that Cole’s Rule 35(a) motion was untimely and,
therefore, that the court lacked jurisdiction to consider it. Alternatively, the court
1
Specifically, Cole was convicted of two drug offenses and two firearm offenses. The
district court sentenced him to concurrent terms of 120 months, life imprisonment, and 360
months for the 18 U.S.C. § 922(g), and 21 U.S.C. § 841 offenses, respectively. The fourth count,
a conviction under 18 U.S.C. § 924(c), carried a mandatory consecutive 60-month term of
imprisonment.
2
Cole’s sentences were enhanced based on his 1985 and 1989 state court convictions
under Fla. Stat. § 893.13. Cole contends that this statute is unconstitutional on its face under
Shelton v. Sec’y, Dept. of Corr., 802 F. Supp.2d 1289 (M.D. Fla. 2011).
2
denied the motion on the merits. Cole now appeals.
We review de novo questions of the district court’s jurisdiction. United
States v. Oliver, 148 F.3d 1274, 1275 (11th Cir. 1998). “[A]side from the specific
parameters set forth by the federal statutory provisions controlling sentencing, as
well as the Federal Rules of Criminal Procedure,” district courts do not have the
authority to modify a sentence. United States v. Diaz-Clark, 292 F.3d 1310, 1315
(11th Cir. 2002).
Rule 35 provides: “Within 14 days after sentencing, the court may correct a
sentence that resulted from arithmetical, technical, or other error.” Fed. R. Crim.
P. 35(a). A district court can modify a sentence under Rule 35(a) only within the
rule’s time limitation. United States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir.
2003). Moreover, although a district court has jurisdiction to modify a
defendant’s sentence in limited circumstances, it has no inherent authority to
modify a sentence sua sponte. Diaz-Clark, 292 F.3d at 1316–18.
Here, the district court properly concluded that it lacked jurisdiction to
modify Cole’s sentences because Cole filed his Rule 35(a) motion in 2011, far
beyond the rule’s time limit for modifying sentences imposed in 2001.3 We
3
We liberally construe pro se filings to determine if there is any legally justifiable basis
for relief. Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir. 1991). Federal prisoners
seeking to collaterally attack their convictions and sentences generally must do so under § 2255.
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construe the district court’s denial as a dismissal and affirm. Cf. Cani v. United
States, 331 F.3d 1210, 1216 (11th Cir. 2003) (construing a dismissal as a denial
because the district court possessed subject matter jurisdiction and should have
denied the defendant’s motion on the merits).
AFFIRMED.
28 U.S.C. § 2255; see also Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). But we
cannot construe Cole’s motion as a motion to vacate sentence under § 2255 because Cole has
previously filed such a motion, and he lacks permission to file a second or successive one. 28
U.S.C. § 2244(b)(3)(A).
4