Case: 13-40575       Document: 00512418305         Page: 1     Date Filed: 10/24/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 24, 2013
                                     No. 13-40575
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

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.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 2   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, 

,
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, 

, 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,

, 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, 

, 901-04 (5th Cir. 2001).
      Boutte has “appealed from the denial of a meaningless, unauthorized
motion.” United States v. Early, 

, 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.




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