USA v. Celis-Chavez

Filing 920100107

Case: 08-20816

Document: 0051998370

Page: 1

Date Filed: 01/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-20816 Summary Calendar January 7, 2010 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. SANTOS MIGUEL CELIS-CHAVEZ, also known as Chirris, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:02-CR-79-7

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* The federal district court sentenced Santos Miguel Celis-Chavez (Celis) ­ federal prisoner # 13822-179 ­ to 120 months of imprisonment for aiding and abetting the harboring of illegal aliens for commercial advantage and private

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

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Case: 08-20816

Document: 0051998370

Page: 2

Date Filed: 01/07/2010

No. 08-20816 financial gain and conspiring to commit hostage taking.1 This court upheld his conviction on direct appeal.2 Celis moved in the district court for § 2255 relief, which the court denied. This court refused him a certificate of appealability. Celis next moved the district court to reduce his sentence pursuant 18 U.S.C. § 3742. The district court denied the motion. Celis now ­ in his third time before this court ­ appeals the district court's denial of his motion for reduction of sentence pursuant to 18 U.S.C. § 3742. The Government's motion to dismiss this appeal is GRANTED. Celis's motion lacks a jurisdictional basis; it is a "meaningless, unauthorized motion."3 Furthermore, Celis's appellate brief exceeds the topical scope of his motion before the district court. To the extent that we liberally could construe his pro se brief as a type of § 2255 motion, it would be a successive petition. Celis has not shown the court either newly discovered evidence or a new rule of constitutional law ­ at least one of which is required for this court to certify a successive petition.4

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See 8 U.S.C. § 1324(a)(1); 18 U.S.C. § 1203(a). See United States v. Velez-Cortez, 83 F. App'x 633 (5th Cir. 2003) (unpublished).

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United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). See also United States v. Bailey, 265 F. App'x 426, 426 (5th Cir. 2008) ("[Prisoner] also is precluded from obtaining relief under 18 U.S.C. § 3742, as relief thereunder is reserved only for direct appeals. . . . [Prisoner's] motion on it face was therefore unauthorized, and the district court was without jurisdiction to entertain it.") (unpublished). See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244. See also Burton v. Stewart, 549 U.S. 147, 153 (2007) ("A three-judge panel of the court of appeals may authorize the filing of the second or successive application only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2244(b)(2).").
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Case: 08-20816

Document: 0051998370

Page: 3

Date Filed: 01/07/2010

No. 08-20816 It follows that the Government's motion for an extension of time to file a brief; Celis's motions for appointment of counsel and for summary judgment; and any other outstanding motions are DENIED as moot.

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