USA v. Jimiyu Vernon

Filing

UNPUBLISHED OPINION FILED. [10-30136 Affirmed ] Judge: EHJ , Judge: EGJ , Judge: LHS Mandate pull date is 11/15/2010 [10-30136]

USA v. Jimiyu Vernon ase: 10-30136 C

Document: 00511273699 Page: 1 Date Filed: 10/25/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30136 S u m m a r y Calendar October 25, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J I M I Y U VERNON, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:08-CR-79-1

B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. P E R CURIAM:* J im iy u Vernon, federal prisoner # 30572-034, pleaded guilty to possessing w it h intent to distribute 50 grams or more of cocaine base and cocaine h y d r o c h lo r id e and with possession of a firearm in furtherance of a drug t r a ffic k in g offense. He currently appeals the district court's denial of his motion t o compel specific performance of the plea agreement by ordering the G o v e r n m e n t to file a motion for a reduction of his sentence pursuant to Rule 3 5 (b ) of the Federal Rules of Criminal Procedure.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30136 Document: 00511273699 Page: 2 Date Filed: 10/25/2010 No. 10-30136 R u le 35(b) does not provide a jurisdictional basis upon which to entertain V e r n o n 's motion. See United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994). Vernon has made nothing more than a "generalized allegation[] of improper m o t iv e ," which does not warrant relief or an evidentiary hearing. See Wade v. U n ite d States, 504 U.S. 181, 186 (1992). Additionally, the language of the plea a g r e e m e n t reflects that the Government did not surrender its discretion to file a motion for a reduction of sentence. See United States v. Price, 95 F.3d 364, 368 (5 t h Cir. 1996). V e r n o n contends that agents of the Government assured him prior to the e n tr y of the guilty plea that he had in fact provided substantial assistance w a r r a n tin g a motion for a reduced sentence, and that the Government's failure t o do so thus rendered his guilty plea involuntary. This contention is more p r o p e r ly raised in the context of a direct appeal or in a 28 U.S.C. § 2255 motion. See United States v. Amaya, 111 F.3d 386, 388-89 (5th Cir. 1997); United States v . Nuckols, 606 F.2d 566, 568 (5th Cir. 1979). Even if this court considered V e r n o n 's motion for specific performance as a request for leave to amend the § 2255 motion pending at the time it was filed, Vernon has not established that h e was entitled to relief because the amendment would be futile. See Lowrey v. T e x a s A&M University System, 117 F.3d 242, 245 (5th Cir. 1997); United States v . Smith, 915 F.2d 959, 963 (5th Cir. 1990); United States v. Fuller, 769 F.2d 1 0 9 5 , 1099 (5th Cir. 1985). Consequently, the judgment of the district court is A F F IR M E D .

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