     Case: 11-60076     Document: 00511576091         Page: 1     Date Filed: 08/18/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 18, 2011
                                     No. 11-60076
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUNIOUS C. MORGAN, also known as J.C. Morgan,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:85-CR-46-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Junious C. Morgan, federal prisoner # 01109-043, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his motion for
correction of illegal sentence pursuant to former FED. R. CRIM. P. 35(a) as a
successive 28 U.S.C. § 2255 motion. We agree with Morgan that the district
court erred in construing Morgan’s Rule 35(a) motion as a successive § 2255
motion. A Rule 35(a) motion is considered to be part of the original criminal
proceeding, rather than a collateral attack on the sentence. See United States

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-60076

v. Scott, 672 F.2d 454, 456 n.3 (5th Cir. 1982); United States v. Shillingford, 586
F.2d 372, 375 (5th Cir. 1978).
      Morgan is also correct that, because his offenses were committed prior to
November 1, 1987, the version of Rule 35 in effect at that time applies to him.
See United States v. Pineda, 988 F.2d 22, 23 n.2 (5th Cir. 1993). Under that
version of the rule, a district 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) (1982).
      No COA is required to appeal the denial of a Rule 35(a) motion; by the
plain language of 28 U.S.C. § 2253, a COA is required only for 28 U.S.C. § 2254
actions and § 2255 motions. See Ojo v. INS, 106 F.3d 680, 681 (5th Cir. 1997).
Accordingly, Morgan’s request for a COA is denied as unnecessary.
      During jury deliberations at his trial, Morgan absconded from the
jurisdiction of the district court, and he fled to his native Jamaica. The jury
found him guilty on all of the 16 counts in the indictment. Morgan was
subsequently extradited from Jamaica, but the extradition was only for Count
3. In 1990, the district court sentenced Morgan to 15 years of imprisonment on
Count 3.
      Morgan was subsequently released on parole and deported to Jamaica. In
2004, he was arrested in Miami, Florida, and removed to the Southern District
of Mississippi. In 2005, the district court sentenced him to a total of 15 years of
imprisonment on the remaining counts of the indictment.
      Morgan argues that the imposition of the 15-year sentence in 2005 violated
the Double Jeopardy Clause because he had already served a 15-year sentence
for the same conduct. He maintains that all of his sentences would have run
concurrently if they had all been imposed in 1990, making the imposition of the
new sentence in 2005 an impermissible increase in his punishment.
      In 1990, Morgan was sentenced only on Count 3.            In 2005, he was
sentenced on the remaining counts of conviction, but he was not sentenced again

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                                   No. 11-60076

on Count 3. While Morgan was sentenced at different times for different counts
arising out of the same course of conduct, the Double Jeopardy Clause does not
prohibit successive prosecutions for different offenses arising out of the same
course of conduct. See United States v. Dixon, 509 U.S. 688, 703-11 (1993).
Contrary to Morgan’s assertion, the district court had discretion to impose
consecutive sentences for different counts of conviction. See United States v.
Anderson, 651 F.2d 375, 378-79 (5th Cir. Unit A July 1981).
      While Morgan’s procedural argument is correct, his substantive challenge
to his sentence is without arguable merit and thus frivolous. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his appeal is dismissed as
frivolous. See 5TH CIR. R. 42.2.
      COA DENIED AS UNNECESSARY; APPEAL DISMISSED.




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