### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-40575 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. MELVIN BRADLEY BOUTTE, Defendant–Appellant.

A ppeal from the United States District Court for the Eastern District of Texas USDC No. 1:07-CR-50-1

Before WIENER, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Melvin Bradley Boutte, federal prisoner # 13611-035, appeals the denial of his “ Motion for Plain Error R e v i e w S ua Sponte,” challenging his s entence of 87 m o n t hs of i mprisonment imposed following his guilty-plea conviction of felon in possession of a firearm. See 18 U .S.C. § 922(g)(1). Boutte argued in his motion that § 2K2.1 of the Guidelines forbids enhancing a s entence based on a prior offense when that same offense w as used as r e l e v a n t conduct in determining the advisory guidelines range in an e arlier, separate prosecution. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 24, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-40575 Document: 00512418305 Page: 1 Date Filed: 10/24/2013No. 13-40575

He raised this same argument previously in a motion to reduce his s entence pursuant to 28 U.S.C. § 3582 ( c ) ( 2 )

. T he d istrict court denied that motion and denied the instant motion for the same reasons. Although Boutte cited Rule 5 2(b) o f t he Federal Rul e s o f C riminal Procedure a s t h e basis for his motion, that rule merely p rovides that a plain

error may be corrected if it affects s ubstantial r i g h t s , which implicates the appellate standard of review. See Henderson v. United States , 1 33 S. C t. 1121, 1 1 2 6 ( 2 0 13). To the extent the motion could be c o nstrued as seeking reconsideration of the district court ’ s d e n i a l o f h is § 3 582(c)(2) motion, it was untimely, because a r econsideration motion in a crimin a l c a se must be filed within t he period to file a notice of appeal. See F E D
. R

. A P P
. P. 4(b)(1)(A)(i). Further, Boutte’s c hallenge to the c alculation of hi s s e n tence u nder the Guidelines could not be considered in a 28 U.S.C. § 2255 motion as it asserts a nonconstitutional error that could have b een raised on direct appeal. See United States v. Towe , 26 F.3d 614, 6 16 (5th Cir. 1994). E ven if Boutte’s motion could be construed as a § 2255 m o t ion, the district court would have lacked j urisdiction to consider it because Boutte p reviously f iled a § 2255 motion, and t his court has not authorized him to file a successive § 2255 motion. See Hooker v . S i v l e y , 187 F.3d 680, 681-82 (5th Cir. 1 9 9 9 ) ; 2 8 U.S.C. § 2244(b)(3)(A). He likewise cannot raise his claim in a 2 8 U .S.C

. § 2 2 4 1 motion. S ee Reyes-Requena v. United States , 243 F.3d 893, 901-04 (5th Cir. 2001). Boutte ha s “ a p pealed from the denial of a meaningless, u nauthorized motion.” United States v. Early , 27 F .3d 140, 142 (5th Cir. 1994). Therefore, we AFFIRM the judgment of the district c ourt on this alternative basis. See id. The Government’s Motion f o r S u m mary Affirmance, or, Alternatively, for an Extension of Time Within Which to File a Brief, is DENIED.

2 Case: 13-40575 Document: 00512418305 Page: 2 Date Filed: 10/24/2013