IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50290
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN LEON ROBINETTE,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-88-CR-130-1
- - - - - - - - - -
(October 19, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
John Leon Robinette, a federal prisoner proceeding pro se,
appeals the district court's denial of his motion to correct
sentence under FED. R. CRIM. P. 35(a). Current Rule 35(a), which
applies to offenses committed on or after November 1, 1987, does
not apply to Robinette's case as his offenses did not occur on or
after that date. See FED. R CRIM. P. 35(a). Construing his
motion as one under former Rule 35, Robinette's arguments also
fail. The version of Rule 35 applicable to offenses committed
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-50290
-2-
before November 1, 1987, provided that: "The court may correct an
illegal sentence** at any time." See FED. R. CRIM P. 35.
Nevertheless, contrary to Robinette's contentions, there was
no basis for the district court to sentence him under the
Sentencing Guidelines as he was already in custody and incapable
of further offense conduct when the guidelines took effect. See
FED. R. CRIM P. 35 (Editorial Notes).
Robinette's request that we treat his filing as a writ of
error coram nobis, rather that a Rule 35 motion, is denied. As
Robinette is still in custody, the requested writ is not
available to him. See United States v. Morgan, 346 U.S. 502, 509
(1954).
Because Robinette's appeal is frivolous, it is DISMISSED.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR.
R. 42.2.
Robinette's motion to unseal documents is DENIED. Robinette
is hereby cautioned that any additional frivolous appeals filed
by him or on his behalf will invite the imposition of sanctions.
To avoid sanctions, Robinette is further cautioned to review any
pending appeals to ensure that they do not raise arguments that
are frivolous because they have been previously decided by this
court. See Smith v. McCleod, 946 F.2d 417, 418 (5th Cir. 1991);
Jackson v. Carpenter, 921 F.2d 68, 69 (5th Cir. 1991).
**
The "illegality" referred to in this rule is one
disclosed by the record such as a sentence in excess of statutory
provision or in some other way contrary to applicable statute. 3
WRIGHT ET AL., FED. PRAC. & PROC. § 582 at 381.