NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 06a0035n.06 Filed: January 11, 2006 04-3785 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. LEON CURTIS LEWIS, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

Before: NELSON, DAUGHTREY, and SUTTON, Circuit Judges. PER CURIAM. The defendant, Leon Curtis Le wis, was convicted in 1990 of drugtrafficking, including a charge of conspiracy. This appeal represents at least his fourth effort in this court to overturn his conviction and/or sentence. He now claims that the district court erred when it declined to reconsi der its previous order dismissing his motion, filed pursuant to Federal Rule of Criminal Procedure 35, to revise the sentence imposed as a result of the conspiracy conviction. T he district court initially held that it lacked jurisdiction to consider the merits of the Rule 35 motion and reiterated that ruling on motion to reconsider. The court also denied relief under Rule 32. The defendant was charged by indictment in August 1989 with 11 counts of narcoticrelated offenses. The first of these counts charged the defendant with conspiracy to04-3785 United States v. Lewis

- 2 - distribute and possession with intent to di stribute cocaine and cocaine base from 1986 through, and including, July 26, 1989. C ounts 2 through 8 concerned conduct that occurred prior to November 1, 1987. C ounts 9 through 11 charged conduct that occurred in 1988 and 1989. The defendant was convicted on all counts in January 1990. In June 1990, the district court sent enced the defendant to 293 months on counts 1, 6, 8, 10, and 11; 240 months on counts 2, 3, 5, 7, and 9; and 60 months on count 4. All these sentences were calculated under the United States Sentencing Guidelines, and all of them were to be served concurrently. The defendant appealed his conviction to this court, which affirmed the conviction. United States v. Lewis , No. 90-3604, 929 F.2d 702, 1991 WL 43903 (6th Cir. March 29, 1991) (“ Lewis I ”). In January 1992, the defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255, raising ineffe ctive assistance of counsel claims. In December of the same year, the district court issued an opinion and order denying the motion as procedurally barred, finding that the moti on was based on issues that had been decided in the direct appeal, or in the alternative, that were without merit. One month later, the defendant filed a motion for relief from judgment raising the same claims that were addressed in his direct appeal and first § 2255 moti on. The district court denied this motion on March 2, 1993. In February 1995, t he defendant, represented by counsel, filed a second § 2255 motion to vacate his sentence, claiming violations of the Double Jeopardy Clause, ineffective assistance of counsel, and sentencing errors. The district court denied04-3785 United States v. Lewis

- 3 - the motion in December, and we affirmed on February 4,1997. See Lewis v. United States , No. 96-3092, 107 F.3d 11, 1997 WL 49028, at *1 (6th Cir. Feb. 4,1997) (“ Lewis II ”). Then, on October 8, 1998, the defendant f iled a motion to modify his sentence pursuant to Federal Rule of Criminal Procedure 35. He ar gued that sentencing in his case under the United States Sentencing Guideli nes was in error because Counts 2-8 were offenses committed prior to November 1, 1987, the effective date ofthe guidelines. The defendant sought a new sentencing hearing, as well as a hearing to challenge the court’s relevant conduct findings on those counts that were properly subject to the guidelines. In April 2000, the district court issued an order granting in part and denying in part the defendant’s motion. The judge modi fied the defendant’s sentence tomake him eligible for parole on Counts 2-8. The def endant appealed that order, claiming that it was error not to grant a rehearing on other aspects of the original sentence. We affirmed the district court’s order and dismissed the defendant’s appeal. United States v. Lewis , No. 00-3682, 2001 WL 1006280, at *3 (6th Cir. August 24, 2001) (per curiam) (“ Lewis III ”). One month later, the defendantfiled a second Rule 35 motion claiming that his sentence on Count 1, conspiracy, should al so have been imposed according to the preGuidelines regime. In addition, he assert ed that his sentence was illegal because the sentencing judge had not complied with Federal Rule of Criminal Procedure 32 by failing to make any notations on the pre-sentence report or indicating that he would not rely on items in the report to whic h the defendant had objected. In its February 8, 2002, opinion04-3785 United States v. Lewis

1 The district court also considered whether it had jurisdiction if the claim were treated as if the motion had been filed pursuant to 28 U.S.C. § 2255 and reached the sameconclusion, finding that if the defendant’s motion were construed as a § 2255 motion, it would either be time-barred as beyond the one-year statute of limitations or procedurally barred as a successive petition not certified by this court.
2The defendant claimed that he did not receive notice of the district court’s February 8, 2002, denial of his original Rule 35 motion until January 28, 2003, and that hemailed his motion for reconsideration on February 14, 2003. He argues that his late filing of the motion should be excuse d. However, the failure to file a timely notice of appeal deprives the appellate court of jurisdiction, under Federal Rule of Appellate Procedure 4(b), and a late-filed motion to reconsider fails to toll the running of the time period in Rule 4. - 4 - and order, the district court det ermined that it did not have jurisdiction to consider the defendant’s Rule 35 motion and, t herefore, denied it. Specific ally, the judge found that the conspiracy count was a “straddling offense” t hat encompassed overt acts both before and after the effective date of the guidelines and was therefore subject to guideline sentencing. Based on this determination, the court referr ed to the “new” version of Rule 35, which allows a revision of sentence only if a motion is filed within seven days of sentencing or if certain conditions not present in the def endant’s case are met. Because the defendant’s motion came more than a decade after his sentencing, the judge was prohibited from granting it. 1 The court did not address the Rule 32 claim. Over a year later, on February 14, 2003, the defendant filed a motion for reconsideration, raising the same argum ents that were in his original motion. 2On September 29, 2003, the district court denied the motion to reconsider, reiterating the reasoning behind the denial of the motion to revise the defendant’s sentence under Rule 35 and also ruling that, as reflected by t he record, there had been full compliance with Rule 32 at the time of sentencing.04-3785 United States v. Lewis

- 5 - The defendant fil ed a notice of appeal from the judge’s order denying reconsideration on October 10, 2003, but upon review of the f iling dates, we noted that the motion to reconsider was untimely and, theref ore, did not toll the period for filing an appeal from the underlying order. As a result, we held that we had jurisdiction to review only the denial of the motion to reconsider and not the denial of the original Rule 35 motion. We therefore dismissed t he appeal insofar as it applied to t he decision of February 8, 2002. We now have before us only the denial of reconsideration.

We review a district court's decision to deny a motion to reconsider for abuse of discretion. See Horton v. Potter , 369 F.3d 906, 909 (6th Cir. 2004), citing Sommer v. Davis , 317 F.3d 686, 691 (6th Cir. 2003) . We find none in this case. Because the district court merely restated the reasons for denying t he Rule 35 motion, that ruling is not subject to review. Moreover, the district court had no jurisdiction to entertain that portion of the motion to reconsider that raised a claim underRule 32, because Rule 32 “does not provide the district court with jurisdiction to hear a motion making a post-judgment collateral attack on one's sentence.” United States v. Sarduy , 838 F.2d 157, 158 (6th Cir. 1988). Even if we could review the underlying dec ision, there would simply be no basis on which to hold that the defendant’s sentence on t he conspiracy count was subject to revision more than a decade after it was imposed. The district court correctly identified decisions of this court holding that when a conspiracy encompasses dat es both before and after the effective date of the sentencing guidelines, the sentence for such a crime is properly04-3785 United States v. Lewis

- 6 - determined according to the guidelines. See , e.g. , United States v. Chambers , 944 F.2d 1253, 1269-70 (6th Cir. 1991), superceded by statute on other grounds as recognized in United States v. Avery , 128 F.3d 966 (6th Cir. 1997); United States v. Edgecomb , 910 F.2d 1309, 1311 (6th Cir. 1990); United States v. Walton , 908 F.2d 1289, 1300 (6th Cir. 1990). Finally, we note that t he defendant contends on appeal t hat he should benefit from the Supreme Court’s decision in United States v. Booker , 543 U.S. 220 (2005). However, the Supreme Court has not made Booker applicable to cases on post-conviction review.

For the foregoing reasons, we A FFIRM the decision of the di strict court to deny the defendant’s motion for reconsideration.