United States v. Runnels

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41036
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMON RUNNELS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-132-1
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Damon Runnels, federal prisoner # 68688-079, appeals the
district court’s denial of his 18 U.S.C. § 3582 motion to reduce
his sentence. He renews his argument that the sentencing judge
misapplied the sentencing guidelines in his case and contends,
for the first time, that, even if the district court lacked the
authority to correct his sentence under 18 U.S.C. § 3582, this
court has jurisdiction to correct his illegal sentence under 28
United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2004
Charles R. Fulbruge III
Clerk

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No. 03-41036
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U.S.C. § 2106. This court will not consider the newly raised
argument. See Leverette v. Louisville Ladder Co., 183 F.3d 339,
342 (5th Cir. 1999).
The district court’s denial of Runnels’s § 3582 motion is
reviewed for an abuse of discretion. See United States v.
Pardue, 36 F.3d 429, 430 (5th Cir. 1994). Runnels has failed to
demonstrate an abuse of discretion on the district court’s part
because his motion was not authorized under 18 U.S.C.
§ 3582(c)(1) or (2) and was untimely under FED. R. CRIM. P. 35(a).
To the extent Runnels challenges the district court’s refusal to
construe the motion as a 28 U.S.C. § 2255 motion, the argument
fails because, as the district court determined, Runnels has not
alleged any constitutional violation in connection with his
sentence. See United States v. Vaughn, 955 F.2d 367, 368 (5th
Cir. 1992); see also United States v. Segler, 37 F.3d 1131, 1134
(5th Cir. 1994).
Runnels’s appeal is without arguable merit and is DISMISSED
as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2. His motion for leave to submit excerpts
of exhibits in support of his appeal is DENIED.

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