United States v. Jackson

Case: 20-40500     Document: 00515916944         Page: 1     Date Filed: 06/28/2021




              United States Court of Appeals
                   for the Fifth Circuit                             United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                        June 28, 2021
                                  No. 20-40500                         Lyle W. Cayce
                                Summary Calendar                            Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Patrick Alan Jackson,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                       for the Eastern District of Texas
                           USDC No. 1:15-CR-119-11


   Before Higginbotham, Southwick, and Engelhardt, Circuit
   Judges.
   Per Curiam:*
          Patrick Alan Jackson, federal prisoner # 26261-078, moves for leave to
   proceed in forma pauperis (IFP) on appeal from the denial of his motion to
   correct his sentence. Jackson pleaded guilty to conspiracy to possess with



          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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                                    No. 20-40500


   intent to distribute 280 grams or more of cocaine base and was sentenced to
   120 months of imprisonment and five years of supervised release in 2017. By
   this motion, he sought to have his federal sentence of 120 months on the
   cocaine base conspiracy conviction run concurrently with his six-year
   sentence imposed on revocation of his state probation, or to have time in state
   custody credited to his federal sentence. The district court denied Jackson’s
   motion to proceed IFP, certifying that the appeal was not taken in good faith.
   By moving for IFP, Jackson is challenging the district court’s certification.
   See Baugh v. Taylor, 117 F.3d 197, 199-202 (5th Cir. 1997).
          We must examine the basis of our jurisdiction, sua sponte, if
   necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). If Jackson’s
   motion is characterized as a motion in a criminal case, his notice of appeal
   was untimely. See FED. R. APP. P. 4(b)(1)(a)(i). Nevertheless, the time
   limit for appealing in a criminal case is not jurisdictional and may be waived
   by the Government. United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.
   2007). If Jackson’s motion is considered to be civil in nature, such as a 28
   U.S.C. § 2241 petition or a 28 U.S.C. § 2255 motion, because the
   Government is a party to the action, the 60-day appeal period is applicable,
   and his notice of appeal would be timely. See FED. R. APP. P. 4(a)(1)(B).
   Therefore, we pretermit whether Jackson’s notice of appeal was untimely.
          Jackson’s brief is identical to his motion filed in the district court. He
   reargues the same points and does not attempt to identify any error in the
   decision of the district court in denying his motion to correct sentence or his
   motion for IFP. We review “de novo whether the district court had
   jurisdiction to resentence.” United States v. Bridges, 116 F.3d 1110, 1112 (5th
   Cir. 1997).
          A judgment of conviction that includes a prison sentence “constitutes
   a final judgment,” 18 U.S.C. § 3582(b), and a district court may not correct




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                                    No. 20-40500


   or modify a term of imprisonment once it has been imposed, except in those
   specific circumstances enumerated by Congress in § 3582(b) and (c). See
   Bridges, 116 F.3d at 1112. Jackson does not contend, and the record does not
   reflect, that his motion for concurrent sentences or credit falls under any
   provision of § 3582(b) or (c). Because the district court did not indicate that
   it was construing the motion as a § 2255 motion, much less provide Jackson
   with the notice and warnings required before recharacterizing a pro se motion
   as a first § 2255 motion, the motion did not arise under § 2255. See Castro v.
   United States, 540 U.S. 375, 383 (2003). Federal Rules of Criminal Procedure
   35 and 36 likewise do not apply. See FED R. CRIM. P. 35; FED. R. CRIM.
   P. 36; United States v. Mares, 868 F.2d 151, 151 (5th Cir. 1989).
          To the extent that Jackson is challenging the execution of his sentence,
   § 2241 is the proper procedural vehicle to challenge the execution of his
   sentence rather than its validity. See Jeffers v. Chandler, 253 F.3d 827, 830
   (5th Cir. 2001); United States v. Brown, 753 F.2d 455, 456 (5th Cir. 1985). It
   is also the proper vehicle for obtaining credit for prior custody. United States
   v. Garcia-Gutierrez, 835 F.2d 585, 586 (5th Cir. 1988).             Accordingly,
   Jackson’s claim for credit toward his federal sentence for the time that he was
   incarcerated in state prison should have been construed as seeking relief
   under § 2241. See Leal v. Tombone, 341 F.3d 427, 427-30 (5th Cir. 2003);
   United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994). When Jackson filed
   his pleading in the district court, he was incarcerated in the Federal
   Correctional Institution in Oakdale, Louisiana, not in the Eastern District of
   Texas. Accordingly, the district court was without jurisdiction to consider
   the merits of Jackson’s motion insofar as it is considered a § 2241 petition.
   See Brown, 753 F.2d at 456; Reyes-Requena v. United States, 243 F.3d 893, 895
   n.3 (5th Cir. 2001).
          Jackson’s motion was unauthorized and without a jurisdictional basis,
   and “he has appealed from the denial of a meaningless, unauthorized



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   motion.” See United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994). He
   has failed to show that his appeal involves “legal points arguable on their
   merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th
   Cir. 1983) (internal quotation marks and citations omitted). His motion to
   proceed IFP is DENIED, and his appeal is DISMISSED as frivolous. See
   Baugh, 117 F.3d at 202 & n.24; 5th Cir. R. 42.2.




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