United States v. Lopez

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-31160 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARCOS GILBERTO LOPEZ,

Defendant-Appellant.

______________________________________ Appeal from the United States District Court for the Western District of Louisiana USDC No. 94-CR-20022 ______________________________________ July 8, 1997 Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

PER CURIAM:*

Arcos Gilberto Lopez, a federal prisoner (# 32794-019), appeal s from the district court’s

denial of his motion to reconsider the court’s denial of his “Emergency Motion for Specific

Performance of Plea Agreement,” which he filed almost 20 months after he pleaded guilty to

conspiracy to escape from a federal correctional facility. Lopez’s “Emergency Motion” was

“unauthorized” because the relief he sought was not available under any federal statute or rule

providing for postconviction relief. See United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994).

* Pursuant to 5TH Cir. R. 47.5 the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH Cir. R. 47.5. Relief was not available to Lopez under Fed. R. Crim. P. 35, 18 U.S.C. § 3742, 18 U.S.C. §

3582(c)(2), or 28 U.S.C. § 2255. See id.; § 2255. Although the district court denied Lopez’s motion

on the merits, it should have denied the motion for lack of jurisdiction. See Early, 27 F.3d at 142.

However, this court may affirm on the alternative ground that Lopez’s “Emergency Motion” was

meritless, in that the Government did not breach the plea agreement with Lopez. See id.

AFFIRMED.