     Case: 09-20640     Document: 00511125131          Page: 1    Date Filed: 05/28/2010




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

                                                  FILED
                                                                            May 28, 2010
                                     No. 09-20640
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

v.

GERMAN DUQUE,

                                                   Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:90-CR-424-2


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        German Duque, federal prisoner # 54991-079, appeals the district court’s
summary denial of his challenge to the validity of his indictment, filed pursuant
to F ED. R. C RIM. P. 12(b)(3)(B). Duque filed this motion after his conviction was
affirmed on appeal and the expiration of the time for seeking certiorari. Because
the criminal proceedings were no longer pending, this motion was unauthorized
and without a jurisdictional basis. See United States v. Early, 27 F.3d 140, 142
(5th Cir. 1994). Because Duque was not challenging his sentence, his motion

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20640    Document: 00511125131 Page: 2        Date Filed: 05/28/2010
                                 No. 09-20640

could not be construed as arising under 18 U.S.C. § 3582 or F ED. R. C RIM. P. 35.
Moreover, it cannot be construed as a 28 U.S.C. § 2255 motion to vacate, set
aside, or correct his sentence because Duque has already filed one § 2255 motion
that was addressed on the merits and a new motion would be subject to the
jurisdictional bar of 28 U.S.C. § 2244(b)(3)(A). See United States v. Key, 205 F.3d
773, 774 (5th Cir. 2000).
      Duque has thus “appealed from the denial of a meaningless, unauthorized
motion.” Early, 27 F.3d at 142. Accordingly, the judgment of the district court
denying relief on Duque’s motion is AFFIRMED. See id.




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