FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 4, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12616

Non-Argument Calendar

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D. C. Docket No. 91-00211-CR-J-10-GRJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

FREDERICK F. BULLARD, 

a.k.a. Paper, 

a.k.a. Edward Tyrone Collins, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(January 4, 2006)

Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.

PER CURIAM:
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A jury found appellant guilty of conspiring to distribute cocaine between the

Fall of 1986 and November 1991, and the court sentenced him under the

Sentencing Reform Act of 1984 and the Sentencing Guidelines promulgated

thereunder to life imprisonment. We affirmed his conviction and sentence. United

States v. Bullard, 83 F.3d 435 (Table), 11th Cir. (Fla.), Apr 04, 1996. In July

1998, appellant moved the court to modify his sentence pursuant to 18 U.S.C. §

3582(c) based on an intervening modification of the Sentencing Guidelines. The

court granted the motion, and reduced appellant’s sentence to 480 months’

imprisonment. Appellant appealed, and we affirmed. United States v. Bullard,

251 F.3d 161 (Table), 11th Cir. (Fla.), June 08, 2001. While this appeal was

pending, appellant moved the district court to vacate his sentence pursuant to 28

U.S.C. § 2255, contending that his sentence was unconstitutional under Apprendi

v. New Jersey, 530 U.S. 466, 124 S.Ct. 2438 (2000). The court denied his motion,

and we affirmed, holding that Apprendi afforded appellant no relief on collateral

attack. United States v. Bullard, 31 Fed.Appx. 941 (Table), 11th Cir. (Fla.), Feb

04, 2002. Lastly, in March 2005, appellant moved the court for relief from his

sentence pursuant to former Fed. R. Crim. P. 35(a), again challenging the

constitutionality of his motion—apparently under United States v. Booker, 543

U.S. ____, 125 S.Ct. 738 (2005). He contended that the former rule was applicable
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because the conspiracy with which he was charged began before the effective date

of the Sentencing Guidelines, i.e., November 1, 1987. The court denied his

motion. It did so without passing on whether former Rule 35(a) applied. Instead,

assuming that the rule applied, the court, citing In re Anderson, 396 F.3d 1336,

1340 (11th Cir. 2005), denied appellant’s motion on the ground that Booker does

not apply retroactively to cases on collateral review. Appellant now appeals the

denial of his motion. We affirm.

In appealing his conviction and sentence, appellant did not challenge the

court’s imposition of his sentence pursuant to the Sentencing Reform Act and the

Sentencing Guidelines. In other words, he did not contend that the conspiracy of

which he was convicted ceased prior to November 1, 1987, such that he should

have been sentenced under pre-Guidelines law. The district court therefore lacked

authority under the Criminal Rules to entertain appellant’s former Rule 35(a)

motion (which is not applicable to sentences imposed under the Guidelines). The

rule that does apply is the current version of Rule 35 (effective December 1, 2002)

which states that the court may correct a sentence that “resulted from arithmetical,

technical, or other clear error” within 7 days after sentencing. Fed. R. Crim. P.

35(a) (2005). This 7-day requirement is jurisdictional. United States v. DiazClark, 292 F.3d 1310. 1317 (11th Cir. 2002). Hence, the court should have denied
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appellant’s motion for lack of jurisdiction. In passing, we agree with the court that

Booker provides no relief on collateral attack.

AFFIRMED.