                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                                                    FILED
                                  No. 04-15177
                                                           U.S. COURT OF APPEALS
                              Non-Argument Calendar          ELEVENTH CIRCUIT
                            ________________________             June 24, 2005
                                                              THOMAS K. KAHN
                         D. C. Docket No. 96-00022-CR-PAS         CLERK


UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,


      versus


DAVID HARRELL,
a.k.a. Darren Johnson,
a.k.a. Robin Hood,
et al.,
                                                            Defendant-Appellant.


                            ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________
                                 (June 24, 2005)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
      David Harrell, a federal prisoner proceeding pro se, appeals the district

court’s order denying his motion to correct his sentence pursuant to Fed.R.Crim.P.

Rule 35(a). On appeal, he argues that the district court erred in finding that his

Rule 35(a) motion had to be filed within seven days after the imposition of his

sentence. He argues in his initial brief that because he was sentenced under the

federal sentencing guidelines, he can challenge the illegality of the sentence under

Rule 35(a), pursuant to Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531, 159

L.Ed.2d 403 (2004). Harrell also argues in his Reply brief that under United

States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district

court should have granted relief pursuant to Blakely and Booker. Harrell also

asserts that because all of his co-defendants entered into plea agreements before he

proceeded to the re-trial, the conspiracy count could no longer exist, since he was

the only person named and charged in the redacted indictment. Accordingly, the

sentence violated his due process rights because the government never proved the

existence of the conspiracy.   Harrell also argues that his sentence exceeded the 20

years statutory maximum because in addition to 235 months’ of imprisonment the

district court imposed three years of supervised release.

      Whether a district court has subject matter jurisdiction is a question of law

subject to de novo or plenary review. See United States v. Martinez, 241 F.3d



                                           2
1329, 1330 (11th Cir. 2001)(court’s determination that it did not have equitable

jurisdiction is reviewed de novo); see United States v. Sjeklocha, 114 F.3d 1085,

1087, (11th Cir. 1997)(whether the district court had the authority to re-sentence

the defendant under former Rule 35(a) and 28 U.S.C. § 2255 is a legal question

subject to plenary review).

       The 1987 version of the 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). Rule 35(a), as amended on November 1,

1987, 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

                                          3
      unreasonable, upon remand of the case to the court.

Fed.R.Crim.P.35(a)(2002). As of December 1, 2002, Rule 35(a)1 provides that

“within 7 days after sentencing, the court may correct a sentence that resulted from

arithmetical, technical, or other clear error.” Fed.R.Crim.P. 35(a)(2005). The 7-

day requirement in the current version of Rule 35(a) is jurisdictional. United

States v. Diaz-Clark, 292 F.3d 1310, 1317 (11th Cir. 2002)(discussing former Rule

35(c), which became new Rule 35(a) on December 1, 2002).

      The record reveals that Harrell was charged with crimes that he committed

between 1991 and 1996. Accordingly, the pre-November 1, 1987, version of Rule

35(a) is inapplicable to Harrell’s situation. Furthermore, the version of the Rule

35(a) that was in effect at the time Harrell was convicted has no application either,

because his sentence was not remanded from the court of appeals. Under the

circumstances of this case, current Rule 35(a) applies but provides no relief to

Harrell, because his motion was filed years after the seven-day period had expired,

and therefore, was untimely. Accordingly, the district court lacked jurisdiction to

correct Harrell’s sentence, and this we need not address Harrell’s claims on the

merits.



      1
       The seven day limitation was contained in former Rule 35(c). See
Fed.R.Crim.P. 35(c)(2002), and 2002 Advisory Committee Notes to current Rule
35.

                                          4
       Even if the district court had construed Harrell’s motion as a motion for

relief under § 2255, there was no relief available to Harrell because he had already

filed a § 2255 motion, and there was no indication in the record that he had

obtained our authorization to file a second or successive § 2255 motion.2

       Based on the foregoing, the district court did not err by denying Harrell’s

Rule 35(a) motion. As such, it is not necessary to analyze the merits of Harrell’s

claims.

       Accordingly, upon review of the record and consideration of the briefs of the

parties, we affirm.

       AFFIRMED.




       2
         In any event, we have held that the Supreme Court has not made Blakely retroactively
applicable on collateral review. See In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004). We have
also held that because the Supreme Court has not made Booker retroactively applicable to cases
on collateral review, an application to file a second or successive § 2255 petition based on
Booker does not meet the statutory criteria. In re Anderson, 396 F.3d 1336, 1340 (11th Cir.
2005). For these reasons, and because Harrell’s motion to supplement his initial brief to discuss
Booker was rendered unnecessary by Harrell’s subsequently filed reply brief which did address
Booker, Harrell’s motion to supplement is denied as moot.

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