USA v. Jorge Diaz, No. 19-50848 (5th Cir. 2020)
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Case: 19-50848 Document: 00515441655 Page: 1 Date Filed: 06/04/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-50848 Summary Calendar FILED June 4, 2020 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. JORGE DIAZ, also known as Payaso, also known as Narizon, Defendant–Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 3:10-CR-2213-20 Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges. PER CURIAM: * Jorge Diaz, federal prisoner # 68521-280, appeals the denial of his postjudgment motion to modify or waive the fine imposed following his guilty plea to engaging in the affairs of an enterprise through a pattern of racketeering activity. The $5,000 fine was imposed in a judgment entered in 2012. That judgment was amended in 2018 to reduce the term of imprisonment. Diaz appealed, and we dismissed the appeal under Anders v. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-50848 Document: 00515441655 Page: 2 Date Filed: 06/04/2020 No. 19-50848 California, 386 U.S. 738 (1967). Diaz then filed a motion to modify or waive the $5,000 fine, and the district court denied that motion. In the present appeal from the denial of that motion, Diaz argues, for the first time, that the fine violated the Eighth Amendment’s Excessive Fines Clause. We generally will not consider new theories of relief raised for the first time on appeal absent exceptional circumstances. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (per curiam) (citing North Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir. 1996)). In any event, the district court was without authority to modify the fine. To the extent that Diaz’s motion in the district court could be construed as a request for relief under 28 U.S.C. § 2255, a challenge to a fine imposed at sentencing is not cognizable in a § 2255 review. United States v. Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994) (citing United States v. Michaud, 901 F.2d 5, 7 (1st Cir. 1990)). Nor did the district court have authority to modify or waive the fine under 18 U.S.C. § 3582(c) and Federal Rule of Criminal Procedure 35. See 18 U.S.C. § 3582(c) (authorizing only “[m]odification[s] of an imposed term of imprisonment”); FED. R. CRIM. P. 35(a), (b); United States v. Lopez, 26 F.3d 512, 515-21 (5th Cir. 1994) (per curiam). Because there was no legal basis for the pro se motion, Diaz has appealed “from the denial of a meaningless, unauthorized motion” that had no jurisdictional basis. United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994) (per curiam). Accordingly, we lack jurisdiction and dismiss the appeal. See United States v. Key, 205 F.3d 773, 774-75 (5th Cir. 2000) (per curiam). APPEAL DISMISSED. 2
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