United States v. Smith

*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this opinion should not be published and is not precedent except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. 01-30995
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANDY SMITH, also known as Smitty,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CR-50079-4
October 2, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
On September 16, 1999, Defendant-Appellant Sandy Smith was
sentenced to sixty months imprisonment and five years supervised
release after having pleaded guilty to 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii), possession with intent to distribute over five
grams of cocaine base. Smith did not file a direct appeal. On
April 24, 2001, the defendant filed a motion to modify and correct
his presentence report pursuant to Federal Rule of Criminal

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1 Specifically, Smith objected to a two-point enhancement to
his base offense level for possessing a firearm during the
commission of a drug offense. He contended that the facts set out
in the PSR in support of this enhancement were unreliable, and that
therefore the two-point enhancement was plain error.
2 United States v. Frady, 456 U.S. 152, 164 (1982) (concluding
that Rule 52(b)’s plain error standard “was intended for use on
direct appeal” and “is out of place when a prisoner launches a
collateral attack against a criminal conviction after society's
legitimate interest in the finality of the judgment has been
perfected by the expiration of the time allowed for direct review
or by the affirmance of the conviction on appeal”).
2
Procedure 52(B).1 He now appeals the district court’s denial of
his motion.
As the district court found, Federal Rule of Criminal
Procedure 52(b) does not provide an independent basis for a
collateral attack on a final judgment.2 Because Smith did not
provide an appropriate basis on which to consider his motion, the
district court lacked jurisdiction over the motion, and we AFFIRM
its denial of relief on this basis.

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