### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20285 Summary Calendar

MANDELL RHODES, JR., Plaintiff-Appellant

v. NATHANIEL QUARTERMAN; BRAD LIVINGSTON; BECKY PRICE, Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CV-2508

Before DAVIS, DeMOSS, and HAYNES, Circuit Judges. PER CURIAM: * Mandell Rhodes, Jr., Texas prisoner # 307498 , w a s c o nvic t e d o f a g gr av at ed rape in 1980 and s e n t e n c e d to 50 years of imprisonment. After Rhodes was convicted, the aggravated rape statute was amended in 1981 and again in 1983, and the offense became known as aggravated s e x u a l assault. See Griffith v. State , 116 S. W

. 3 d 7 8 2, 787–88 (Tex. Crim. App. 2003); Lindsey v. State , 760 S.W.2d 649, 649–51 (Tex. Crim. App. 1988). Proceeding pro s e a n d in forma pauperis, Rhodes filed the instant 42 U.S.C. § 1983 complaint alleging that U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 28 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-20285 Document: 00511803837 Page: 1 Date Filed: 03/28/2012No. 11-20285

prison officials failed to consider his eligibility for administrative good conduct t i m e under the 1983 version of the Texas Prison Management Act ( P MA) (enacted due to prison overcrowding). Rhodes acknowledge d t h a t inmates convicted of certain, listed offenses (which included aggravated sexual assault)

were exclu d e d f

rom eligibility for administrative good conduct time under the 1983 PMA. He argued, however, that aggr a v a t e d rape was not one of those listed offenses and that he was not disqualified from receiv i n g a dministrative good conduct time under the 1983 PMA. Rhodes’s notice of appeal is timely only as to the district court’s denial of his second “motion for reconsideration.” See F E D
. R. AP P
. P. 4(a); see Halicki v. La. Casino Cruises, Inc. , 151 F.3d 465, 467–70 (5th Cir. 1998). The underlying dismissal of Rhodes’s complaint and the denial of his first motion for reconsideration are not properly before this court. See Charles L.M. v. Ne. Indep. Sch. Dist. , 884 F.2d 869, 870–71 (5th Cir. 1989); Ellis v. Richardson , 471 F.2d 720, 721 (5th Cir. 1973). Rhodes challenges the district court’s finding that “aggravated rape” and “aggravated sexual assault” are the same offense for purposes of the 1983 PMA and that he is therefore excluded from eligibility for administrative good conduct time under the PMA. When the aggravated rape statute was amended in 1981 and 1983, it expanded criminal liability rather than narrowing it. See Griffith , 116 S.W.3d at 787–88; Lindsey , 760 S.W.2d at 649–51. There i s n o merit to Rhodes’s argument that the conduct for which he was convicted in 1980 is not included in the conduct prohibited by the 1983 version of the aggravated sexual as s a u l t statute. See Griffith , 116 S.W.3d at 787–88. The district court did not abuse its discretion in dismissing Rhodes’s complaint. See id. at 787; Seven Elves, Inc. v. Eskenazi , 635 F.2d 396, 402 (5th Cir. 198 1). AFFIRMED.

2 Case: 11-20285 Document: 00511803837 Page: 2 Date Filed: 03/28/2012