United States v. Cole

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-10823
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY ANTHONY COLE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:92-CR-59-1
--------------------
Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Gary Anthony Cole, federal prisoner # 22707-077, appeals the
district court’s denial of his motion for an evidentiary hearing
and sentencing modification. In his motion, Cole challenged his
1992 convictions and sentences for conspiring to obstruct, delay,
and affect commerce by robbery; obstructing, delaying, and
affecting commerce by robbery; and carrying a firearm in relation
to a crime of violence. Cole complains that the district court
failed to address the merits of his arguments.

-- 1 of 2 --

No. 05-10823
-2-
Regardless of the label Cole affixed to his motion, it
challenged the constitutionality of his convictions and sentences
and should have been construed as a 28 U.S.C. § 2255 motion.
See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Cole
had filed a previous § 2255 motion and did not obtain this
court’s authorization to file a second or successive § 2255
motion. See 28 U.S.C. §§ 2244(b)(3)(A), 2255. Thus, the
district court lacked jurisdiction to consider Cole’s motion as a
§ 2255 motion. See United States v. Key, 205 F.3d 773, 774 (5th
Cir. 2000). We affirm the district court’s denial of Cole’s
motion on that basis. See United States v. Early, 27 F.3d 140,
142 (5th Cir. 1994).
Cole is warned that any further repetitious or frivolous
filings, including those attempting to circumvent statutory
restrictions on filing second or successive § 2255 motions, will
result in the imposition of sanctions against him. These
sanctions may include dismissal, monetary sanctions, and
restrictions on his ability to file pleadings in this court and
any court subject to this court’s jurisdiction.
AFFIRMED; SANCTION WARNING ISSUED.

-- 2 of 2 --