USA vs. Hill (5th Cir. 2006)

Federal Circuits, 5th Cir. (October 13, 2006)

Docket number: 05-11129

Not Published
Permanent Link: http://vlex.com/vid/usa-vs-hill-25642753
Id. vLex: VLEX-25642753

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U.S. Court of Appeals for the 5th Cir. - John E. Scott, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee., 227 F.3d 260 (5th Cir. 2000)

U.S. Court of Appeals for the 5th Cir. - Cesar Roberto Fierro, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee., 197 F.3d 147 (5th Cir. 1999)

U.S. Supreme Court - Blakely v. Washington, 542 U.S. 296 (2004)

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Text:

United States Court of Appeals

Fifth Circuit

FILED

IN THE UNITED STATES COURT OF APPEALS

October 13, 2006

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 05-11129

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL EARL HILL,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:01-CR-361-ALL

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:* Michael Earl Hill, federal prisoner # 27877-177, appeals the district court's denial of his FED. R. CIV. P. 60(b)(4) motion for relief from judgment. Following his guilty plea to one count of securities fraud and one count of mail fraud, Hill was sentenced to a term of imprisonment of 60 months on each count, to be served consecutively and to be followed by a three-year term of supervised release. Hill argues that, in light of Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), his sentence was unconstitutionally enhanced, that the enhancement of his sentence caused a structural error in his sentencing hearing, and that the district court lacked jurisdiction to enhance Hill's sentence. Because Hill is challenging the validity of his underlying sentence, his FED. R.

CIV. P. 60(b)(4) motion should have been construed as a successive 28U.S.C. § 2255 motion. See Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir. 1999); cf. Gonzalez v. Crosby, 125 S. Ct.

2641, 2651 (2005). Prior to filing the successive motion, Hill was required to obtain authorization to file the successive motion. See 28U.S.C. §§ 2244(b)(3)(A), 2255. Because Hill failed to obtain such authorization, the district court did not err in denying the motion. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000).

AFFIRMED.

* 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.