United States v. Powell

No. 99-10407
-1-
* 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this opinion should not be published and is not precedent except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. 99-10407
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY GENE POWELL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-242-1-R
--------------------
April 11, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Larry Gene Powell pleaded guilty to one count of conspiring
to use the mail with the intent to commit murder-for-hire in
violation of 18 U.S.C. § 1958. Following his conviction and
sentencing, Powell filed, pro se, a document entitled “JUDICIAL
NOTICE DEFENDANTS CLAIM OF MANIFEST INJUSTICE–VOIDS & WITHDRAWS
GUILTY PLEA” on the same day he filed a notice of appeal from the
judgment of conviction. The district court denied Powell’s
claim, but he did not file a notice appeal from that denial.
We do not have jurisdiction over Powell’s appeal because

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No. 99-10407
-2-
Powell has failed to file a notice of appeal regarding the denial
of this claim. See United States v. Carr, 979 F.2d 51, 55 (5th
Cir. 1992). Although Powell filed three notices of appeal, each
of these notices designated other rulings as the subject of the
appeal but failed to specify the denial of the postjudgment
motion as is required to invoke our jurisdiction. Fed. R. App.
P. 3(c)(1)(B).
Furthermore, Powell’s motion, which is construed as a motion
to withdraw his guilty plea, was unauthorized and without a
jurisdictional basis. See United States v. Early, 27 F.3d 140,
141 (5th Cir. 1994). After sentencing, a plea may be set aside
only on direct appeal or by motion under 28 U.S.C. § 2255. Id.
Accordingly, the district court lacked jurisdiction to entertain
the filing. United States v. Cook, 670 F.2d 46, 48 (5th Cir.
1982).
As Powell does not brief any issues other than the denial of
the motion to withdraw his plea, they are deemed abandoned. See
United States v. Heacock, 31 F.3d 249, 258 (5th Cir. 1994); see
also Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993)(only
issues presented and argued in the brief are addressed on
appeal).
This appeal is without arguable merit and thus frivolous.
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is
therefore DISMISSED. 5th Cir. R. 42.2. Counsel is warned that
pursuing frivolous appeals invites the imposition of sanctions.
See United States v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994).
APPEAL DISMISSED; SANCTION WARNING ISSUED.

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