* 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that this opinion should not be published and is not precedent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. 97-41429

Summary Calendar

 

BOBBY JAMES CAMMOCK,

Petitioner-Appellant,

versus

BUREAU OF PRISONS; WOODS, Warden,

Respondents-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. C-96-CV-196

- - - - - - - - - -

February 10, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Within ten days of the entry of the final judgment

dismissing the 28 U.S.C. § 2241 petition filed by Bobby James

Cammock, federal prisoner #60096-080, Cammock filed a “motion to

supplement initial § 2241 habeas corpus petition.” The record

does not indicate that the district court disposed of the motion.

A motion challenging the correctness of the judgment is

treated as a Fed. R. Civ. P. 59 motion for purposes of Fed. 
No. 97-41429

-2-

 

** This court in Venegas held that Congress intended to give

the BOP discretion to exclude from eligibility for § 3621(e)’s

early release incentive violent offenses even if violence was not

a specific element of the offense. Venegas v. Henman, 126 F.3d

760, 763 (5th Cir. 1997), cert. denied, 118 S. Ct. 1679 (1998). 

The Venegas court concluded that the BOP’s decision not to

include as a nonviolent offense drug convictions where the

sentences were enhanced for possession of a dangerous weapon was

consistent with the letter and spirit of the BOP’s authority in 

§ 3621(e). Id. at 765. 

R. App. P. 4(a)(4)(B)(i), regardless of the label applied to the

motion, if it is made within the ten-day limit for Rule 59

motions. Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir.

1994); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d

665, 667 (5th Cir. 1986) (en banc). Rule 4(a)(4)(B)(i), Fed. 

R. App. P., provides that, if a timely motion is made pursuant to

Rule 59(e), a notice of appeal filed after entry of the judgment,

but before disposition of the motion, is ineffective until the

entry of the order disposing of the motion.

Cammock’s “motion to supplement” must be treated as a Rule

59(e) motion because the motion was filed within ten days of the

entry of the judgment dismissing his § 2241 and arguably

challenged the district court’s reliance on Venegas v. Henman.

**

See Mangieri, 29 F.3d at 1015 n.5; see United States v. Gallardo,

915 F.2d 149, 150 n.2 (5th Cir. 1990). As the Rule 59(e) motion

has not yet been disposed of, Cammock’s notice of appeal is

ineffective. Accordingly, we must return the record to the

district court for the limited purpose of permitting the district

court to decide the motion as expeditiously as possible. See

Burt v. Ware, 14 F.3d 256, 260-61 (5th Cir. 1994). 
No. 97-41429

-3-

Following entry of the district court’s order on Cammock’s

Rule 59(e) motion, Cammock is directed to file an amended notice

of appeal within the prescribed period in Fed. R. App. P.

4(a)(1), designating the orders or judgments from which he wishes

to appeal. See Fed. R. App. P. 4(a)(4)(B)(ii). 

 REMANDED.