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United States v. Dorrough, 03-10922 (2004)

Court: Court of Appeals for the Fifth Circuit Number: 03-10922 Visitors: 52
Filed: Jun. 24, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit FILED IN THE UNITED STATES COURT OF APPEALS June 23, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-10922 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JERRY MACK DORROUGH, Defendant-Appellant. - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:63-CR-125-ALL-K - Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges. PER CURIAM:* In 1963, Jerry Mack Dorrough pleaded g
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                                                           United States Court of Appeals
                                                                    Fifth Circuit

                                                                FILED
                  IN THE UNITED STATES COURT OF APPEALS        June 23, 2004
                          FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                               No. 03-10922
                           Conference Calendar



UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

versus

JERRY MACK DORROUGH,

                                       Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                    USDC No. 3:63-CR-125-ALL-K
                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     In 1963, Jerry Mack Dorrough pleaded guilty to robbery of a

postal employee and putting the life of a postal employee in

jeopardy during a robbery in violation of 18 U.S.C. § 2114.

After being released on parole in November 1978, he fled and

eluded authorities until his arrest in May 1999; he is currently

serving his parole.     Dorrough appeals the district court’s denial

of his motion to correct or reduce his sentence pursuant to FED.

R. CRIM. P. 35.    Dorrough argues that his guilty plea was invalid


     *
       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.
                             No. 03-10922
                                  -2-

because the trial court did not advise him of the existence of a

lesser included offense.   Because Dorrough’s claim is actually a

challenge to his conviction, the district court did not abuse its

discretion in holding that Dorrough’s challenge to his guilty

plea was not properly raised under Rule 35.    See United States v.

Prestenbach, 
230 F.3d 780
, 782 (5th Cir. 2000)(“Under Rule 35(a),

a defendant cannot challenge his conviction; he can only

challenge his sentence.”).    Even if the motion were construed as

a 28 U.S.C. § 2255 motion, the district court did not err in

determining that it should be dismissed because the motion would

be successive, and Dorrough did not show that he had obtained

authorization to file a successive 28 U.S.C. § 2255 motion.     See

United States v. Rich, 
141 F.3d 550
, 551-52 (5th Cir. 1998).

     AFFIRMED.

Source:  CourtListener

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