                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                     FILED
                                                            U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                               No. 04-11251                   September 1, 2006
                         ________________________               THOMAS K. KAHN
                                                                    CLERK
                    D. C. Docket No. 88-01007-CR-1-MMP


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

WILLIE BUD REED, JR.,

                                                                 Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                              (September 1, 2006)

Before MARCUS, WILSON and COX, Circuit Judges.

PER CURIAM:

     Willie Bud Reed appeals the district court’s order denying his motion to correct

illegal sentence, filed pursuant to Fed. R. Crim. P. 35, based on the court’s
determination that the motion was an attempt by Reed to file an impermissible

successive habeas petition under 28 U.S.C. § 2255. Because Reed’s motion to correct

was untimely, we affirm.1

      The procedural history, which spans eighteen years may be summarized as

follows. On August 23, 1988, Reed was convicted, after a jury trial, of conspiracy

to possess with intent to distribute more than fifty grams of cocaine base, in violation

of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to 420 months’ imprisonment.

On direct appeal, we affirmed his conviction and sentence. He subsequently filed a

pro se motion to correct sentence, pursuant to 28 U.S.C. § 2255, alleging various

sentencing errors, numerous instances of ineffective assistance of trial and appellate

counsel, and that he was denied his right to be represented at trial by counsel of his

choice. The district court denied the petition and we affirmed. In rejecting Reed’s

arguments concerning his ineffective-assistance claims, we observed that the trial

evidence of Reed’s involvement in the charged crimes was “overwhelming” and,

therefore, Reed could not satisfy the “prejudice” prong of the test for ineffective

assistance of counsel espoused in Strickland v. Washington, 466 U.S. 668, 686

(1984). See Reed v. United States, No. 00-13394 (11th Cir. Sep. 14, 2001)

(unpublished).

      1
          We DENY Reed’s pro se motion for appointment of new counsel.

                                            2
      Reed then filed the following, all of which the district court denied as

successive § 2255 petitions: a motion for relief from judgment, pursuant to Fed. R.

Civ. P. 60(b); two motions to alter or amend judgment, pursuant to Fed. R. Civ. P.

59(e); and a petition for writ of coram nobis. Reed also sought transfer of his Rule

60(b) motion to this Court, pursuant to 28 U.S.C. § 1631, which was denied. Reed

filed unsuccessful appeals from these decisions.

      On February 4, 2004, Reed filed the instant motion, this time proceeding under

Fed. R. Crim. P. 35(a), raising three arguments: (1) a 35-year term of imprisonment

without parole was illegal under the laws in place at the time the crime of conviction

occurred; (2) he was improperly denied good-time credit, pursuant to 18 U.S.C. §

3624, because his offense occurred between October 1, 1987 and December 31, 1987;

and (3) the fact that his sentence did not provide for the possibility of parole violated

ex post facto principles. The district court construed the Rule 35(a) motion as a

successive § 2255 motion and denied it. The district court also denied a certificate

of appeal (“COA”) for this appeal. Thereafter, Reed filed a Notice of Appeal

(“NOA”) from the denial of his Rule 35(a) motion. He has not requested, nor

obtained, a COA from this Court to proceed on appeal.

      In the instant request, Reed sought modification of his sentence. “[A]side

from the specific parameters set forth by the federal statutory provisions controlling

                                           3
sentencing, as well as the Federal Rules of Criminal Procedure,” district courts do not

have the authority to modify a sentence. See United States v. Diaz-Clark, 292 F.3d

1310, 1315 (11th Cir. 2002). Modification of an imposed term of imprisonment is

governed by 18 U.S.C. § 3582(b), which provides, inter alia, for correction of a

sentence of imprisonment pursuant to the provisions of Rule 35. See 18 U.S.C. §

3582(b)(2).

      The 1987 version of Rule 35(a) provided that “the court may correct an illegal

sentence at any time and may correct a sentence imposed in an illegal manner within

the time provided herein for the reduction of sentence.” Fed. R. Crim. P. 35(a) (1987).

The “time provided herein for the reduction of sentence” referred to the timing

requirements in Fed. R. Crim. P. 35(b), which allowed a sentence reduction

      within 120 days after the sentence is imposed or probation is revoked,
      or within 120 days after receipt by the court of a mandate issued upon
      affirmance of the judgment or dismissal of the appeal, or within 120
      days after entry of any order or judgment of the Supreme Court denying
      review of, or having the effect of upholding, a judgment or conviction
      or probation revocation.

Fed. R. Crim. P. 35(b)(1987).




                                          4
       Rule 35(a), as amended on November 1, 1987, as part of the Sentencing

Reform Act of 1984,2 permitted correction of a sentence upon remand from the court

of appeals:

       (a) Correction of a Sentence on Remand. The court shall correct a
       sentence that is determined on appeal under 18 U.S.C. 3742 to have
       been imposed in violation of law, to have been imposed as a result of an
       incorrect application of the sentencing guidelines, or to be unreasonable,
       upon remand of the case to the court.

Fed. R. Crim. P. 35(a) (2002). Additionally, the amended version of Rule 35 allowed

a district court to “correct a sentence that was imposed as a result of arithmetical,

technical, or other clear error” within 7 days after the imposition of sentence. Fed.

R. Crim. P. 35(c) (2002). Finally, on December 1, 2002, the rule was amended again

to incorporate stylistic changes to the Federal Rules, and the seven-day limit that was

previously in subsection (c) was moved to subsection (a). See Fed. R. Crim. P. 35(a)

(2006); Fed. R. Crim. P. 35 advisory committee’s note (noting that the former Rule

35(c) was moved to Rule 35(a)).3 We may affirm the district court’s judgment on any


       2
         “The effective date of the Sentencing Reform Act of 1984, Pub. L. 98-473, 98 Stat.
1837, 1987 (1984) was set out in Sec. 235(a)(1), which provided for the Act to take effect on
November 1, 1987. Pub. L. 98-473, Title II, Ch. II, Sec. 235(a)(1), October 12, 1984, 98 Stat.
2031, as amended by Section 4 of Pub. L. 99-217, December 26, 1985, 99 Stat. 1728.” United
States v. Terzado-Madruga, 897 F.2d 1099, 1123 (11th Cir. 1990).
       3
            We have held that the seven-day requirement is jurisdictional. Diaz-Clark, 292 F.3d at
1317 (discussing former Rule 35(c)). The parties do not address the effect, if any, of the Supreme
Court’s recent decision in Eberhart v. United States, 126 S. Ct. 403,407 (2005), in which the Court
held that the seven-day time limitation in Fed. R. Crim. P. 33(a) is a “claims-processing rule” rather

                                                  5
ground that appears in the record, whether or not that ground was relied upon or even

considered by the court below. See Spaziano v. Singletary, 36 F.3d 1028, 1041 (11th

Cir. 1994).

       The evidence presented at trial established Reed’s involvement in the

substantive offense of possessing with intent to distribute cocaine base from October

1, 1987 until December 31, 1987, and a conspiracy to commit same until April 6,

1988. As his crime began prior to the effective date of the Sentence Reform Act of

1987, but ended after the effective date, Reed was sentenced pursuant to the

Sentencing Guidelines. Cf. United States v. Pippin, 903 F.2d 1478, 1480-81 (11th

Cir. 1990) (concluding that “Congress intended for the Guidelines to be used both

for offenses commenced after November 1, 1987 and offenses begun before but not

completed until after that date”). Accordingly, it is plain that the pre-November 1,

1987 version of Rule 35(a) is inapplicable to Reed’s situation. Cf. United States v.

Jordan, 915 F.2d 622, 624 (11th Cir. 1990) (holding that 1987 version of Rule 35(a)

providing for correction of sentence “at any time” was inapplicable to defendant

sentenced under the Sentencing Reform Act of 1984).




than a jurisdictional bar. In any event, because the government asserts that Reed’s motion to correct
was untimely, the instant case is distinguishable from Eberhart, in which the government did not
assert the time bar in response to defendant’s untimely motion for a new trial.

                                                 6
       Moreover, we need not decide whether it is appropriate to use the version of

Rule 35 in effect at the time Reed was sentenced or the version in effect currently,

because both contain the seven-day restriction. Reed did not file his motion to correct

sentence within the seven days prescribed by the rule and therefore it was untimely.

At this late date, almost eighteen years after Reed’s sentence was imposed, we readily

conclude the district court did not err by denying Reed’s untimely Rule 35(a) motion.4

       AFFIRMED.




       4
          We are obliged to look beyond the label of a pro se inmate’s motion to determine if it is
cognizable under a different statutory framework. United States v. Stossel, 348 F.3d 1320, 1322
n.2 (11th Cir. 2003). Even if we were to construe Reed’s Rule 35 motion as a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2255, he would still not be entitled to relief. Reed had
previously filed at least one § 2255 motion, and he did not obtain our permission to file a
successive motion. See 28 U.S.C. § 2244(b)(3)(A) (noting “[b]efore a second or successive
application permitted by this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
application”); cf. United States v. Rivera, 376 F.3d 86, 92 (2d Cir. 2004) (construing a motion
filed under Rule 35 as a habeas petition and denying the petition because it failed to comply with
the one-year period of limitations contained in § 2255). Moreover, to the extent he asserts an
argument pursuant to Blakely v. Washington, 542 U.S. 296 (2004), a claim based on that case is
not retroactively available on collateral review. See Varela v. United States, 400 F.3d 864, 866-
67 (11th Cir.), cert. denied, 126 S. Ct. 312 (2005).

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