IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40575

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

MELVIN BRADLEY BOUTTE,

Defendant–Appellant.

Appeal 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 Review Sua Sponte,” challenging his sentence

of 87 months of imprisonment 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 sentence based on a

prior offense when that same offense was used as relevant conduct in

determining the advisory guidelines range in an earlier, separate prosecution. 

United States Court of Appeals

Fifth Circuit

F I L E D

October 24, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. 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 5TH CIR.

R. 47.5.4.

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

He raised this same argument previously in a motion to reduce his sentence

pursuant to 28 U.S.C. § 3582(c)(2). The district court denied that motion and

denied the instant motion for the same reasons.

Although Boutte cited Rule 52(b) of the Federal Rules of Criminal

Procedure as the basis for his motion, that rule merely provides that a plain

error may be corrected if it affects substantial rights, which implicates the

appellate standard of review. See Henderson v. United States, 133 S. Ct. 1121,

1126 (2013). To the extent the motion could be construed as seeking

reconsideration of the district court’s denial of his § 3582(c)(2) motion, it was

untimely, because a reconsideration motion in a criminal case must be filed

within the period to file a notice of appeal. See FED. R. APP. P. 4(b)(1)(A)(i). 

Further, Boutte’s challenge to the calculation of his sentence under the

Guidelines could not be considered in a 28 U.S.C. § 2255 motion as it asserts a

nonconstitutional error that could have been raised on direct appeal. See United

States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994). Even if Boutte’s motion could

be construed as a § 2255 motion, the district court would have lacked jurisdiction

to consider it because Boutte previously filed a § 2255 motion, and this court has

not authorized him to file a successive § 2255 motion. See Hooker v. Sivley,

187 F.3d 680, 681-82 (5th Cir. 1999); 28 U.S.C. § 2244(b)(3)(A). He likewise

cannot raise his claim in a 28 U.S.C. § 2241 motion. See Reyes-Requena v.

United States, 243 F.3d 893, 901-04 (5th Cir. 2001).

Boutte has “appealed from the denial of a meaningless, unauthorized

motion.” United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Therefore, we

AFFIRM the judgment of the district court on this alternative basis. See id. The

Government’s Motion for Summary Affirmance, or, Alternatively, for an

Extension of Time Within Which to File a Brief, is DENIED.

2

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