United States v. Diaz

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50848
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JORGE DIAZ, also known as Payaso, also known as Narizon,

Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-2213-20

Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM:
*

Jorge Diaz, federal prisoner # 68521-280, appeals the denial of his
postjudgment motion to modify or waive the fine imposed following his guilty
plea to engaging in the affairs of an enterprise through a pattern of
racketeering activity. The $5,000 fine was imposed in a judgment entered in
2012. That judgment was amended in 2018 to reduce the term of
imprisonment. Diaz appealed, and we dismissed the appeal under Anders v.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
June 4, 2020

Lyle W. Cayce
Clerk
Case: 19-50848 Document: 00515441655 Page: 1 Date Filed: 06/04/2020

No. 19-50848
2
California, 386 U.S. 738 (1967). Diaz then filed a motion to modify or waive
the $5,000 fine, and the district court denied that motion. In the present
appeal from the denial of that motion, Diaz argues, for the first time, that the
fine violated the Eighth Amendment’s Excessive Fines Clause.
We generally will not consider new theories of relief raised for the first
time on appeal absent exceptional circumstances. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (per curiam) (citing North Alamo
Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir. 1996)). In
any event, the district court was without authority to modify the fine. To the
extent that Diaz’s motion in the district court could be construed as a request
for relief under 28 U.S.C. § 2255, a challenge to a fine imposed at sentencing
is not cognizable in a § 2255 review. United States v. Segler, 37 F.3d 1131,
1136-37 (5th Cir. 1994) (citing United States v. Michaud, 901 F.2d 5, 7 (1st Cir.
1990)). Nor did the district court have authority to modify or waive the fine
under 18 U.S.C. § 3582(c) and Federal Rule of Criminal Procedure 35. See 18
U.S.C. § 3582(c) (authorizing only “[m]odification[s] of an imposed term of
imprisonment”); F
ED. R. CRIM. P. 35(a), (b); United States v. Lopez, 26 F.3d 512,
515-21 (5th Cir. 1994) (per curiam).
Because there was no legal basis for the pro se motion, Diaz has appealed
“from the denial of a meaningless, unauthorized motion” that had no
jurisdictional basis. United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994)
(per curiam). Accordingly, we lack jurisdiction and dismiss the appeal. See
United States v. Key, 205 F.3d 773, 774-75 (5th Cir. 2000) (per curiam).
APPEAL DISMISSED.
Case: 19-50848 Document: 00515441655 Page: 2 Date Filed: 06/04/2020