United States v. Robinette

                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that this opinion should not be published.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.