     Case: 15-50304      Document: 00513303142         Page: 1    Date Filed: 12/10/2015




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


                                    No. 15-50304                               FILED
                                  Summary Calendar                     December 10, 2015
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALVIN LEON ROUNDTREE, also known as Alvin Roundtree, also known as
Alvin L. Roundtree,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-554-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Alvin Leon Roundtree, federal prisoner # 20242-380, pleaded guilty to
assaulting an officer or employee of the United States with a deadly weapon,
and he was sentenced to 240 months of imprisonment. He appeals the district
court’s denial of his post-judgment motions to compel the Government to
specific performance.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-50304    Document: 00513303142     Page: 2   Date Filed: 12/10/2015


                                 No. 15-50304

      Roundtree argues that the Government violated the plea agreement by
asking the district court to sentence him based on a cross-reference to assault
with intent to commit murder and attempted murder, offenses to which he did
not plead guilty, instead of the Guideline for aggravated assault, the offense to
which he pleaded guilty pursuant to the plea agreement. Roundtree, however,
has not cited, in the district court or this court, any recognized procedural
vehicle supporting his motions. Because Roundtree has not filed a 28 U.S.C.
§ 2255 motion attacking his conviction and sentence, the district court could
not construe his motions as a § 2255 motion without informing Roundtree of
its intent to recharacterize his motions as a § 2255 motion, warning Roundtree
that such a recharacterization would restrict his ability to file a future § 2255
motion, and giving Roundtree the opportunity to withdraw or amend his
motions.    See Castro v. United States, 540 U.S. 375, 382-83 (2003).
Furthermore, Roundtree has not shown that he was prejudiced by the district
court’s failure to construe his motions as a § 2255 motion. The district court
could not construe the motions as a Federal Rule of Criminal Procedure 35
motion because they were neither made by the Government nor made within
seven days of sentencing. See FED. R. CRIM. P. 35; United States v. Early, 27
F.3d 140, 141 (5th Cir. 1994). Similarly, the district court could not construe
the motions as a 18 U.S.C. § 3582(c)(2) motion because they were not based
upon an amendment to the Sentencing Guidelines. See § 3582(c)(2); Early, 27
F.3d at 142.
      This appeal is “from the denial of [] meaningless, unauthorized
motion[s].” Early, 27 F.3d at 142. Accordingly, it is DISMISSED as frivolous.
See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).




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