627 F. App'x 378
5th Cir.
2015

UNITED STATES of America, Plaintiff-Appellee v. Melvin B. BOUTTE, also known as Mark Bradley, Defendant-Appellant.

No. 15-30510

United States Court of Appeals, Fifth Circuit.

Dec. 23, 2015.

628 Fed. Appx. 378

Summary Calendar. Cristina Walker, Assistant U.S. Attorney, U.S. Attorney‘s Office, Shreveport, LA, for Plaintiff-Appellee. Melvin B. Boutte, Oakdale, LA, pro se.

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Melvin B. Boutte, pro se federal prisoner # 13611-035, appeals the district court‘s denial of his motion for a writ of error coram nobis pursuant to 28 U.S.C. § 1651(a). Boutte is serving a 120-month sentence of imprisonment imposed following his 2009 guilty plea to possession with intent to distribute cocaine base and carrying a firearm during and in relation to a drug trafficking crime. According to Boutte, his conduct did not meet the 18 U.S.C. § 924(c)(1) definition of carrying a firearm during and in relation to a drug trafficking offense because the weapon was not used in furtherance of the drug offense. Therefore, he contends, the district court violated his constitutional right to due process by accepting his plea to the charge.

Although the district court did not address its jurisdiction, this court must consider the basis of the district court‘s jurisdiction sua sponte if necessary. See EEOC v. Agro Distribution, LLC, 555 F.3d 462, 467 (5th Cir.2009). Boutte was not entitled to relief through a motion for a writ of error coram nobis because he is still in custody. See United States v. Esogbue, 357 F.3d 532, 534 (5th Cir.2004). Because he is challenging his federal sentence, the district court should have construed his motion as a 28 U.S.C. § 2255 motion. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir.2000). The district court, however, lacked jurisdiction to do so because Boutte previously filed a § 2255 motion, and this court did not authorize the filing of a successive § 2255 motion. See Hooker v. Sivley, 187 F.3d 680, 681-82 (5th Cir.1999); United States v. Harris, 388 Fed.Appx. 385, 386 (5th Cir.2010); 28 U.S.C. § 2244(b)(3)(A). Boutte‘s appeal is thus “from the denial of a meaningless, unauthorized motion.” See United States v. Early, 27 F.3d 140, 142 (5th Cir.1994). Therefore, the district court‘s judgment is AFFIRMED on the ground that the district court lacked jurisdiction over the motion. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir.1992).

UNITED STATES of America, Plaintiff-Appellee v. Timothy Wayne HARRIS, Jr., Defendant-Appellant.

No. 15-40200

United States Court of Appeals, Fifth Circuit.

Dec. 23, 2015.

628 Fed. Appx. 379

Summary Calendar. John B. Ross, Assistant U.S. Attorney, U.S. Attorney‘s Office, Beaumont, TX, for Plaintiff-Appellee. Donald Lee Bailey, Sherman, TX, for Defendant-Appellant.

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

Timothy Wayne Harris, Jr., appeals his conviction on five counts of a superseding indictment and his within-guidelines sentence totaling 522 months. A jury found him guilty of conspiracy to carjack, two counts of carjacking, and two counts of using or carrying a firearm during and in relation to the carjacking offenses.

Harris argues that the district court failed to arraign him on the superseding indictment. Because Harris did not raise this objection until after the trial was completed, we review for plain error. See Fed. R. Crim. P. 52(b); Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). To establish plain error, a defendant must show (1) an error; (2) that is clear or obvious; and that (3) affects his substantial rights. Puckett, 556 U.S. at 135. If he makes such a showing, we have the discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

Both parties note that after the jury was sworn, the district court read the indictment in open court. Harris, who was present, then pleaded not guilty to each count of the superseding indictment. This arguably satisfies the notice requirements of the Sixth Amendment and Federal Rule

Notes

*
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. 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.