* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 11, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-31080

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY WASHINGTON,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 98-CR-50036-3

Before GARWOOD, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM: *

Johnny Washington, federal prisoner #09941-035, appeals the

denial of his motion for leave to file a motion pursuant to Fed. R.

Crim. P. 35, 12 (b), and 52(b) in order to challenge his conviction

and sentence for drug violations. The rules cited by Washington as

the basis for his motion did not vest the district court with

jurisdiction. Because the district court was without jurisdiction1 Though not raised on appeal, we note in passing that reversal

here may not be predicated on the district court’s failure to sua

sponte treat any of Washington’s motions as being filed under 28

U.S.C. § 2255 (though none purported to be so filed and Washington

never requested any of these be so considered). Washington failed

to appeal following the district court’s modified judgment of

September 21, 2000 (which, pursuant to our mandate on Washington’s

initial appeal, Unit ed States v. Reliford , 210 F.3d 285, 301-04,

309 (5th Cir. April 14, 2000), eliminated his attempt conviction

and reimposed his conviction and original 248 month sentence on the

other counts of conv iction). Washington’s first motion was not

filed until January 11, 2002, more than a year after his conviction

and sentence had become final, hence any of the motions if treated

as being under § 2255 would be barred by the one year limitations

period provided for in § 2255. Moreover, a certificate of

appealability, which 28 U.S.C. § 2253(c)(1)(B) requires to appeal

a denial of relief under § 2255 was never issued. Finally, we also

note that to the extent that Washington relies on Apprendi v. New

Jersey

, 120 S.Ct. 2348 (2000), and the asserted failure of the

indictment to allege o r the jury to find the quantity of cocaine

involved, even if denial of § 2255 relief were properly before us,

and even if Apprendi were potentially applicable to such a § 2255

challenge, cf

. United States v. Brown

, 305 F.3d 304 (5th Cir.

2002), it is plain that A pprendi was not violated because

Washington’s 248 month sentence did not exceed the 360 month

statutory maximum, applicable to those such as Washington with a

prior felony drug conviction, provided for by 21 U.S.C. §

841(b)(1)(C) in respect to offenses involving any amount of cocaine

base or cocaine powder, Washington having be en charged with and

convicted by the jury of such an offense. U nited States v. Keith

, 230 F.3d 784 (5th Cir. 2000).

2 to entertain Washington’s motion, Washington has appealed from the

denial of a “meaningless, unauthorized motion.” S ee United States

v. Ear ly , 27 F.3d 140, 142 (5th Cir. 1994). Accordingly, the

denial of Washington’s motion is affirmed on this basis. S ee id. 1

AFFIRMED.