IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50362
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD JOE HENSON,
also known as Jerry Henson,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-95-CR-154-6-JN
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October 25, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Gerald Joe Henson, federal inmate # 13118-064, appeals the
district court’s dismissal of his Fed. R. Crim. P. 12(b)(2)
motion for lack of subject-matter jurisdiction. Henson contends
that the district court erred by construing his motion as a 28
U.S.C. § 2255 motion. Henson wishes to challenge his indictment
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), because
the indictment did not allege a $61 million tax loss, obstruction
of justice, and the printing of counterfeit securities.
*
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that this opinion should not be published and is not precedent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. 01-50362
-2-
Our review of the district court’s dismissal for lack of
jurisdiction is de novo. See Hager v. NationsBank N.A., 167 F.3d
245, 247 (5th Cir. 1999). Regardless of the label Henson affixed
to his motion, it challenges the constitutionality of his
sentence as imposed by the district court and was properly
construed as a 28 U.S.C. § 2255 motion. See Tolliver v. Dobre,
211 F.3d 876, 877 (5th Cir. 2000); United States v. Rich, 141
F.3d 550, 551 (5th Cir. 1998). Because the motion filed
purportedly under Fed. R. Crim. P. 12(b)(2) was properly
construed as a successive 28 U.S.C. § 2255 motion, Henson was
required to obtain this court’s authorization to file it. 28
U.S.C. §§ 2244(b)(3)(A), 2255. Henson did not obtain
authorization, and the district court properly dismissed the
motion for lack of jurisdiction. The district court’s dismissal
is AFFIRMED.
United States v. Henson
Combined Opinion