No. 99-50422

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* 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this opinion should not be published and is not precedent except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. 99-50422

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY M. GONZALES,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Texas

USDC No. A-91-CR-4-ALL

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April 11, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges. 

PER CURIAM:*

Johnny M. Gonzales, federal prisoner # 53504-080, appeals

from the district court’s denial for lack of jurisdiction of his

motion for resentencing pursuant to 18 U.S.C. §§ 3582 and 3742. 

He argues that amendments 439 and 503 to the sentencing

guidelines, enacted after he was sentenced, are applicable to his

case and would result in a reduced sentence. 

Section 3582(c)(2) applies only to guideline amendments that

operate retroactively, as listed in U.S.S.G. § 1B1.10(c), p.s. 

United States v. Miller, 903 F.2d 341, 349 (5th Cir. 1990). 
No. 99-50422

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Amendments 439 and 503 are not listed in § 1B1.10(c). Section

3582(c)(2) is therefore inapplicable in Gonzales’s case. See

Miller, 903 F.2d at 349.

Likewise, § 3742 does not provide a jurisdictional basis for

Gonzales’s motion to reduce his sentence. The provisions for a

modification of a sentence under § 3742 are available to a

defendant only upon direct appeal of a sentence or conviction. 

United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). This

court heard Gonzales’s direct appeal in 1993.

Because this case does not present a situation to which

either § 3582(c) or § 3742 is applicable, Gonzales’s motion was

an unauthorized one which the district court was without

jurisdiction to entertain. See Early, 27 F.3d at 142. The

district court’s denial of Gonzales’s motion for lack of

jurisdiction is AFFIRMED. 

The issues Gonzalez seeks to raise for the first time in

this appeal -- that the district court failed to assign specific

reasons for the sentence imposed, that the court erred in the

amount of marijuana it attributed to Gonzales for sentencing

purposes, that the “relevant conduct that was used to sentence

Appellant Gonzales was no more than hearsay information from a

Government informant, who was paid ten thousand dollars for his

false testimony,” and that he should not have been sentenced as

an organizer or leader -- need not be addressed. Gonzales did

not make any of these allegations in his motion for resentencing

in the district court. As such, they may not be raised on appeal

for the first time. See Leverette v. Louisville Ladder Co., 183
No. 99-50422

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F.3d 339, 342 (5th Cir. 1999) (“‘The Court will not allow a party

to raise an issue for the first time on appeal merely because a

party believes that he might prevail if given the opportunity to

try a case again on a different theory.’”)(citation omitted),

cert. denied, 120 S. Ct. 982 (2000).

Gonzales’s motion to file a reply brief in excess of the

page limitation under the local rules is DENIED.

JUDGMENT AFFIRMED; MOTION DENIED.