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United States v. Julio Jairo Velez-Rendon, 845 F.2d 304, 11th Cir. (1988)

The document is a court case from the United States Court of Appeals for the Eleventh Circuit regarding Julio Jairo Velez-Rendon's appeal of a district court's denial of his application pursuant to Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure. The appellate court summarizes that Rule 32 alone does not provide jurisdiction for post-judgment collateral attacks. Additionally, the application cannot be considered under Rule 35(a) as it was not filed within 120 days, and any claims under 28 U.S.C. Sec. 2255 would not be cognizable as the alleged errors do not result in a complete miscarriage of justice. The case is remanded to the district court to

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8 views2 pages

United States v. Julio Jairo Velez-Rendon, 845 F.2d 304, 11th Cir. (1988)

The document is a court case from the United States Court of Appeals for the Eleventh Circuit regarding Julio Jairo Velez-Rendon's appeal of a district court's denial of his application pursuant to Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure. The appellate court summarizes that Rule 32 alone does not provide jurisdiction for post-judgment collateral attacks. Additionally, the application cannot be considered under Rule 35(a) as it was not filed within 120 days, and any claims under 28 U.S.C. Sec. 2255 would not be cognizable as the alleged errors do not result in a complete miscarriage of justice. The case is remanded to the district court to

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845 F.

2d 304

UNITED STATES of America, Plaintiff-Appellee,


v.
Julio Jairo VELEZ-RENDON, Defendant-Appellant.
No. 87-5494
Non-Argument Calendar.

United States Court of Appeals,


Eleventh Circuit.
May 17, 1988.

Thomas M. Dawson, Leavenworth, Kan., for Velez-Rendon.


Leon B. Kellner, U.S. Atty., David O. Leiwant, Linda Collins Hertz, Asst.
U.S. Attys., Miami, Fla., for U.S.
Appeal from the United States District Court for the Southern District of
Florida; Eugene P. Spellman, Judge.
Before HATCHETT, ANDERSON and CLARK, Circuit Judges.
PER CURIAM:

Velez-Rendon appeals from the district court's denial of his "Application


Pursuant to Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure." At
the time the district court entered its order, the court did not have the benefit of
our opinion in United States v. Fischer, 821 F.2d 557 (11th Cir.1987), in which
we held the following:

2
Fed.R.Crim.P.
32, standing alone, does not provide the district court with
jurisdiction to hear a motion making a post-judgment collateral attack on one's
sentence for a Rule 32 violation.
3

Id. at 558.

Nor can we consider appellant's application as a motion to correct a sentence


imposed in an illegal manner under Fed.R.Crim.P. 35(a) because it was not

filed within the required 120 days. If we were to treat the application as a
petition under 28 U.S.C. Sec. 2255 we would have to find that Velez-Rendon's
claims are not cognizable in a habeas corpus proceeding because the errors
Velez-Rendon complains of do not qualify as " 'fundamental defect[s] which
inherently result[ ] in a complete miscarriage of justice.' " Davis v. United
States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974) (quoting
Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417
(1962)); see Hill, 368 U.S. at 424, 82 S.Ct. at 468 (sentencing court's failure to
comply with Fed.R.Crim.P. 32(a) not cognizable under Sec. 2255).
5

Accordingly, the case is remanded to the district court to dismiss for lack of
jurisdiction.

REMANDED.

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