United States v. Basey

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 15, 2006

Charles R. Fulbruge III
Clerk
No. 05-50010
Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

BEN LEE BASEY

Defendant - Appellant

--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:85-CR-116-3
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Before KING, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

Ben Lee Basey, federal prisoner # 34146-080, appeals the

district court’s dismissal of his motion to reduce his sentence

pursuant to FED. R. CRIM. P. 35(a). We agree with Basey that the

district court erred in construing Basey’s Rule 35(a) motion as a

28 U.S.C. § 2255 motion and dismissing it as successive. A Rule

35(a) motion is considered to be part of the original criminal

proceeding, rather than a collateral attack on the sentence. See

*
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this opinion should not be published and is not precedent except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. 05-50010
-2-

United States v. Scott, 672 F.2d 454, 456 n.3 (5th Cir. 1982);

United States v. Shillingford, 586 F.2d 372, 375 (5th Cir. 1978).

Basey is also correct that, because his offense was

committed prior to November 1, 1987, the version of Rule 35 in

effect at that time applies to him, a point that the Government

concedes. See United States v. Pineda, 988 F.2d 22, 23 n.2 (5th

Cir. 1993). Under that version of the rule, a district court

“may correct an illegal sentence at any time and may correct a

sentence imposed in an illegal manner within the time provided

herein for the reduction of sentence.” FED. R. CRIM. P. 35(a)

(1982) (emphasis added).

For the foregoing reasons, the judgment of the district

court is vacated, and this matter is remanded for further

proceedings consistent with this opinion. See In re Argo Fin.,

Inc., 337 F.3d 516, 525 (5th Cir. 2003). We express no view

regarding the merits of the claims Basey seeks to raise via his

Rule 35 motion.

VACATED AND REMANDED.