                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 04 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50520

               Plaintiff - Appellee,             D.C. No. 2:87-cr-00571-SVW

  v.
                                                 MEMORANDUM *
ELRADER BROWNING, Jr.,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Elrader Browning, Jr., appeals pro se from the district court’s order denying

his motion for correction of an illegal sentence under Federal Rule of Criminal

Procedure 35. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Browning contends that the district court erred by denying his Rule 35

motion. He argues that his sentence is illegal because the sentencing court did not

have jurisdiction to sentence him nunc pro tunc on counts 38-43 of his conviction

after he had already filed his initial notice of appeal, and because the court’s

imposition of sentence on those counts in a second sentencing hearing violated the

Double Jeopardy Clause.

      The district court did not abuse its discretion by denying Browning’s

motion. See United States v. Stump, 914 F.2d 170, 172 (9th Cir. 1990).

Browning’s claim that the district court lacked jurisdiction to sentence him nunc

pro tunc should have been brought in his 28 U.S.C. § 2255 motion. See United

States v. Mathews, 833 F.2d 161, 164 (9th Cir. 1987), abrogated on other grounds

by Young v. Holder, 697 F.3d 976, 986 (9th Cir. 2012) (en banc). Even assuming

Browning’s challenge to the nunc pro tunc sentencing is cognizable under Rule 35,

however, it is untimely. Under the former version of the Rule, which the parties

agree applies here, challenges to the manner in which a sentence was imposed had

to be brought within 120 days of the imposition of sentence. See Fed. R. Crim. P.

35 (1987); United States v. Montalvo, 581 F.3d 1147, 1153 (9th Cir. 2009).

Browning did not seek to challenge the nunc pro tunc sentencing until over 20

years had passed from the date of the sentencing.


                                           2                                       11-50520
      To the extent Browning’s claim that his sentence violates the Double

Jeopardy Clause is independent from his challenge to the nunc pro tunc sentencing

and is cognizable under Rule 35, his contention fails. See United States v.

Camacho, 413 F.3d 985, 988 (9th Cir. 2005) (Double Jeopardy Clause “protects

against multiple punishments for the same offense” (internal quotations omitted)).

      We decline to address Browning’s remaining contentions because they were

not raised in the district court. See United States v. Robertson, 52 F.3d 789, 791

(9th Cir. 1994) (“Issues not presented to the district court cannot generally be

raised for the first time on appeal.”).

      AFFIRMED.




                                          3                                        11-50520
