United States v. Benitez

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 4, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41268
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE BENITEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-1357-ALL
--------------------
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Jorge Benitez pleaded guilty to possession with intent to
distribute cocaine and was sentenced to 78 months of imprisonment
and a five-year term of supervised release. Benitez did not
appeal his conviction or sentence. Benitez did, however,
file a pro se postconviction motion for downward departure or
modification of sentence pursuant to 18 U.S.C. § 3582(c), which

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the district court denied. Benitez filed a timely pro se notice
of appeal from the denial of that postconviction motion.
The Federal Public Defender (“FPD”), who was appointed to
represent Benitez in the district court, has moved for leave to
withdraw as counsel and has filed a brief as required by Anders
v. California, 386 U.S. 738 (1967). To the extent that the
notice of appeal could be construed as taken from Benitez’s
underlying conviction, counsel argues that this court has no
jurisdiction to consider an appeal from the underlying conviction
and sentence because the notice of appeal from that judgment was
untimely. Counsel further argues that the district court lacked
jurisdiction to consider Benitez’s postconviction motion.
Benitez has filed a reply arguing only that the district court
improperly denied his postconviction motion. An independent
review of the record, counsel’s brief, and Benitez’s reply
discloses no nonfrivolous issue for appeal with respect to
Benitez’s underlying conviction and sentence.
“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] district court’s authority
to correct or modify a sentence is limited to those specific
circumstances enumerated by Congress in 18 U.S.C. § 3582([c]).”
Id. None of the conditions for granting relief under § 3582(c),
including those applicable under FED. R. CRIM. P. 35, are present.
See United States v. Lopez, 26 F.3d 512, 515-21 (5th Cir. 1994);

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United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994).
Thus, the district court did not have the authority to correct
or modify Benitez’s sentence. Early, 27 F.3d at 142.
The decision in United States v. Mena-Ramirez, No. 01-41314
(5th Cir. May 28, 2002) is not relevant to Benitez’s case because
Mena-Ramirez obtained relief while his (Mena-Ramirez’s) direct
appeal was pending. Moreover, amendments to the Sentencing
Guidelines may be applied retroactively under 18 U.S.C.
§ 3582(c)(2) only if they are listed in U.S.S.G. § 1B1.10(c).
U.S.S.G. § 1B1.10(a), p.s. (Nov. 2002). Neither Amendment 632
nor Amendment 640 is listed in § 1B1.10(c) and therefore may not
be applied retroactively. See § 1B1.10(c), p.s. (Nov. 2002);
United States v. Drath, 89 F.3d 216, 218 (5th Cir. 1996).
Counsel’s motion for leave to withdraw is GRANTED, counsel
is excused from further responsibilities herein, and the APPEAL
IS DISMISSED.

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