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United States v. Tatum, 95-31274 (1996)

Court: Court of Appeals for the Fifth Circuit Number: 95-31274 Visitors: 64
Filed: May 31, 1996
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-31274 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BILLY RAY TATUM, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 91-CR-50073 - - - - - - - - - - May 15, 1996 Before REAVLEY, SMITH and DeMOSS, Circuit Judges. PER CURIAM:* Billy Ray Tatum argues that the district court erred in denying his motion to reduce his senten
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                        __________________

                           No. 95-31274
                         Summary Calendar
                        __________________


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

BILLY RAY TATUM,

                                      Defendant-Appellant.



                        - - - - - - - - - -
          Appeal from the United States District Court
              for the Western District of Louisiana
                       USDC No. 91-CR-50073
                        - - - - - - - - - -
                            May 15, 1996

Before REAVLEY, SMITH and DeMOSS, Circuit Judges.

PER CURIAM:*

     Billy Ray Tatum argues that the district court erred in

denying his motion to reduce his sentence.

     We have reviewed the record, including the transcripts of

Tatum's rearraignment and sentencing hearings, and the briefs of

the parties, and have determined that the district court's denial

of the motion should be affirmed.   The district court did not

have jurisdiction to reduce Tatum's sentence pursuant to 18

U.S.C. § 3582(c)(2) because he was not asserting that he was

     *
        Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
                             No. 95-31274
                                  -2-

entitled to relief under an amended guideline that had been given

retroactive effect by the Sentencing Commission.     See U.S.S.G.

§ 1B1.10(c), p.s.; United States v. Early, 
27 F.3d 140
, 142 (5th

Cir.), cert. denied, 
115 S. Ct. 600
(1994)

     Tatum is challenging the district court's initial denial of

a credit for acceptance of responsibility and its decision to

sentence him as a career offender.    These claims, which could

have been raised on direct appeal but were not, are not

cognizable pursuant to 28 U.S.C. § 2255.     See United States v.

Capua, 
656 F.2d 1033
, 1037 (5th Cir. 1981).

     The district court did not commit plain error in denying

Tatum's claims that he was subjected to selective prosecution and

that his sentence was improperly enhanced pursuant to 18 U.S.C.

§ 924(e)(1).   The former argument does not have a sufficient

factual basis to support relief, and the latter argument is

factually incorrect.

     Tatum's argument that he was subjected to double jeopardy

has no arguable merit.   See United States v. Moore, 
958 F.2d 646
,

650 (5th Cir. 1992).   Nor does his argument that the district

court breached the plea agreement by relying on the presentence

report at sentencing have any merit.    Tatum acknowledged in the

plea agreement and at his rearraignment that his sentence could

not be determined by the district court until the presentence

report had been completed.

     Tatum argued for the first time in his reply brief that he

was entitled to a jury trial to determine whether he violated 18

U.S.C. § 924(e) and that he was subjected to multiple punishment
                             No. 95-31274
                                  -3-

because his property was forfeited without a hearing and he did

not receive a    sixteen-month credit on his federal sentence.

This court will not review issues that are initially raised in a

reply brief.     United States v. Prince, 
868 F.2d 1379
, 1386 (5th

Cir.), cert. denied, 
493 U.S. 932
(1989).

     AFFIRMED.

Source:  CourtListener

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