                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-17096                ELEVENTH CIRCUIT
                                                            OCTOBER 28, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D. C. Docket No. 85-00382-CR-WJZ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ALBERTO A. ROSALES, SR.,

                                                          Defendant-Appellant.


                        ________________________

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

                             (October 28, 2009)



Before BLACK, CARNES and WILSON, Circuit Judges.

PER CURIAM:
      Alberto A. Rosales appeals the district court’s dismissal of his Federal Rule

of Criminal Procedure 35(a) motion to correct illegal sentence. Rosales asserts the

district court erred by relying on Supreme Court precedent dealing exclusively with

28 U.S.C. § 2255 motions. After review, we affirm the district court.

      In October 2001, Rosales filed a pro se 28 U.S.C. § 2255 motion to vacate his

1987 conviction for, inter alia, engaging in a continuing criminal enterprise from

January 1982 through May 13, 1985, in violation of 21 U.S.C. § 848. Finding that

Rosales’s conviction became final in 1994, after the Supreme Court denied

certiorari, the district court dismissed Rosales’s § 2255 motion as time-barred. In

2008, Rosales filed his current Rule 35 motion, in which he argued the district court

should vacate his sentence based upon the Supreme Court’s holding in Richardson

v. United States, 119 S. Ct. 1707 (1999), that a jury had to agree unanimously about

which specific violations make up the continuing series of violations of a

continuing criminal enterprise offense. Rosales maintained the lack of a unanimity

instruction prejudicially affected his Fifth and Sixth Amendment rights. Finding

the Supreme Court had conclusively determined the grounds of Rosales’s motion in




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Dodd v. United States, 125 S. Ct. 2478, 2481-83 (2005),1 the district court denied

Rosales’s motion.

      In the context of a motion to vacate, we review the district court’s factual

findings for clear error and the legal findings de novo. Castillo v. United States,

200 F.3d 735, 736 (11th Cir. 2000). “The question whether the district court had

the authority to resentence the defendant under former Fed. R. Crim. P. 35(a) and

28 U.S.C. § 2255 is a legal question subject to plenary review.” United States v.

Sjeklocha, 114 F.3d 1085, 1087 (11th Cir. 1997).

      Former Rule 35(a) provided, in relevant part, that “[t]he court may correct an

illegal sentence at any time.” Fed. R. Crim. P. 35(a) (1987). “[T]he narrow

function of Rule 35 is to permit correction at any time of an illegal sentence, not to

re-examine errors occurring at the trial or other proceedings prior to the imposition

of sentence.” Hill v. United States, 82 S. Ct. 468, 472 (1962).

      The district court did not err in denying Rosales’s motion. First, because

Rosales challenged his conviction and not the legality of his sentence, Rule 35 did

not provide Rosales any relief, and the district court did not err in construing

Rosales’s Rule 35 motion as a § 2255 habeas petition. See United States v. Jordan,


1
  In Dodd, the Supreme Court held § 2255 “narrowly restricts an applicant’s ability to file a
second or successive motion. An applicant may file a second or successive motion only in
limited circumstances, such as where he seeks to take advantage of a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” Dodd, 125 S. Ct. at 2483 (internal quotations omitted).
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915 F.2d 622, 624-25 (11th Cir. 1990) (stating courts “have an obligation to look

behind the label of a motion filed by a pro se inmate and determine whether the

motion is, in effect, cognizable under a different remedial statutory framework,”

and “claims presented under the previous version of Rule 35(a) are also frequently

cognizable under 28 U.S.C. § 2255 as well”). Second, because Rosales had filed a

previous § 2255 motion which was denied, his failure to move this Court for an

order authorizing the district court to consider a second or successive § 2255 motion

deprived the district court of jurisdiction to consider his motion. See United States

v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (explaining AEDPA requires a

petitioner to first obtain an order from the court of appeals authorizing the district

court to consider a second or successive motion or petition, and that “[w]ithout

authorization, the district court lacks jurisdiction to consider a second or successive

petition.”). Thus, the district court did not err in denying Rosales’s motion because

it lacked jurisdiction to consider it. Accordingly, we affirm.

      AFFIRMED.




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