     Case: 18-30254      Document: 00514640620         Page: 1    Date Filed: 09/13/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-30254                    United States Court of Appeals

                                  Summary Calendar
                                                                             Fifth Circuit

                                                                           FILED
                                                                   September 13, 2018

UNITED STATES OF AMERICA,                                             Lyle W. Cayce
                                                                           Clerk
                                                 Plaintiff-Appellee

v.

MICHAEL THOMAS CUPP,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:14-CR-15-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Michael Thomas Cupp, federal prisoner # 17129-035, was convicted
under 18 U.S.C. § 2250(a) after he pleaded guilty to failing to comply with the
Sex Offender Registration and Notification Act (SORNA). He appeals the
district court’s denial of his motion for immediate release from the 60-month
sentence he is serving. Cupp argues that he is entitled to immediate release
because the retroactive application of SORNA violates the Ex Post Facto


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-30254    Document: 00514640620     Page: 2   Date Filed: 09/13/2018


                                 No. 18-30254

Clause, his continued incarceration violates the Eighth and Fourteenth
Amendments, and federal jurisdiction is lacking.
      The district court has not yet adjudicated Cupp’s pending 28 U.S.C.
§ 2255 motion challenging his conviction and sentence for violating SORNA.
Thus, his motion for immediate release was a constructive motion to amend
his § 2255 motion, cf. United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996),
which the district court implicitly denied, see Norman v. Apache Corp., 19 F.3d
1021-22 (5th Cir. 1994). The district court’s denial of Cupps’s motion to amend
his § 2255 motion, however, is a nonfinal order. See Askanase v. Livingwell,
Inc., 981 F.2d 807, 809-10 (5th Cir. 1993). Therefore, we lack jurisdiction to
consider his interlocutory appeal. See id.
      Cupp’s appeal is DISMISSED for lack of jurisdiction. Cupp’s motion
asking us to respond to his appellate brief is DENIED as unnecessary.




                                       2
