Hoffman v. Conner, et al

No. 99-40146
-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this opinion should not be published and is not precedent except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. 99-40146
Conference Calendar
BERNIE LAZAR HOFFMAN,
Petitioner-Appellant,
versus
N. L. CONNER, Superintendent of FCI
at Texarkana, Texas; UNITED STATES PAROLE
COMMISSION, United States Parole Commission,
Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:97-CV-311
--------------------
February 17, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Bernie Lazar Hoffman appeals the district court's denial of
his petition for habeas corpus under 28 U.S.C. § 2241 and the
district court's denial of his motion for "reconsideration."
Because the notice of appeal was not filed within sixty days of
entry of the district court's judgment and Hoffman did not move
for an extension of time to appeal, this court is without
jurisdiction to review the district court's denial of the habeas
petition. See Fed. R. App. P. 4(a)(1)(B), (a)(5)(A). The appeal
from the denial of the petition for habeas corpus is DISMISSED.

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No. 99-40146
-2-
Hoffman's motion for reconsideration is construed as a Fed.
R. Civ. P. 60(b) motion, the denial of which we review for abuse
of discretion. Aucoin v. K-Mart Apparel Fashion Corp., 943 F.2d
6, 8 (5th Cir. 1991). The only issue raised in Hoffman's motion
concerned his claim that the district court that sentenced him
violated Fed. R. Crim. P. 32 by failing to append Hoffman's
objections to the presentence report and the court's factual
findings on the same to the presentence report. This claim
concerns a nonconstitutional sentencing issue that is not
cognizable in § 2241. See Ojo v. INS, 106 F.3d 680, 683 (5th
Cir. 1997). The district court did not abuse its discretion in
denying the Rule 60(b) motion.
AFFIRMED.

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