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

                                                FILED
                                                                March 27, 2009
                               No. 08-10353
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

DERRICK DAMON RAINWATER

                                           Defendant-Appellant


                 Appeal from the United States District Court
                     for the Northern District of Texas
                           USDC No. 3:94-CR-42-1


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Derrick Damon Rainwater, federal prisoner # 25805-077, is serving a
sentence of 1,117 months of imprisonment. Rainwater moved in March 2007 to
correct his sentence under Rule 36 of the Federal Rules of Criminal Procedure.
The district court denied the motion. On appeal, this court ordered a remand for
the limited purpose of correcting the Amended Judgment, issued in December
1994, to conform with the orally pronounced sentence. See United States v.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-10353

Rainwater, 267 F. App’x 343, 344 (5th Cir. 2008). The district court complied
with this court’s order and issued a Corrected Amended Judgment. Rainwater
again appeals.
      Attacking a previous judgment issued by the district court, Rainwater
contends that the December 1994 Amended Judgment should be vacated because
the district court lacked authority to issue it under Rule 36. As the Amended
Judgment is no longer in force, Rainwater’s challenge is moot. See Rocky v.
King, 900 F.2d 864, 867 (5th Cir. 1990). Moreover, Rainwater’s request to vacate
the Amended Judgment is, in essence, an attempt to collaterally attack that
judgment. A motion under 28 U.S.C. § 2255 is the primary mechanism for
collaterally attacking a federal sentence. Pack v. Yusuff, 218 F.3d 448, 451 (5th
Cir. 2000). Rainwater cannot collaterally attack the Amended Judgment in the
instant appeal. See id.
      Rainwater argues that his rights were violated because he was not present
when the Corrected Amended Judgment was issued. A defendant need not be
present for a mere modification of sentence “unless the modification makes the
sentence more onerous.” United States v. Moree, 928 F.2d 654, 655-56 (5th Cir.
1991).   The Corrected Amended Judgment did not deviate from the oral
pronouncement of sentence; therefore it did not make the sentence more
onerous. Rainwater has not shown error. See id.
      Next, Rainwater contends that the Corrected Amended Judgment violates
the law of the case doctrine and the mandate rule because it imposes consecutive
240-month sentences on counts 5, 7, 9, and 11, whereas the Amended Judgment
had imposed concurrent 960-month sentences. In connection with this issue,
Rainwater has filed a letter under Rule 28(j) of the Federal Rules of Appellate
Procedure, calling this court’s attention to Greenlaw v. United States, 128 S. Ct.
2859 (2008). Rainwater has not shown that the law of the case doctrine or the
mandate rule were violated. See United States v. Lee, 358 F.3d 315, 321 (5th Cir.
2004); Free v. Abbott Labs., Inc., 164 F.3d 270, 272 (5th Cir. 1999).

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                                  No. 08-10353

      Rainwater argues that the Corrected Amended Judgment issued under
Rule 36 violates his rights under the Double Jeopardy Clause. Rainwater’s
constitutional challenge amounts to a collateral attack on his original sentence
that must be brought under § 2255.          See Pack, 218 F.3d at 451.     Having
previously challenged his sentence under 28 U.S.C. § 2255, Rainwater must
apply to this court for authorization to file a second or successive § 2255 motion.
See 28 U.S.C. § 2244(a); § 2255(h); Steve D. Thompson Trucking, Inc. v. Dorsey
Trailers, Inc., 870 F.2d 1044, 1045-46 (5th Cir. 1989).       To the extent that
Rainwater seeks such authorization in the instant appeal, his request is denied
because Rainwater has not made the required prima facie showing that his claim
relies on either (1) newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found him guilty
of the underlying offense, or (2) a new rule of constitutional law that was made
retroactive to cases on collateral review by the Supreme Court and was
previously unavailable. 28 U.S.C. § 2244(b)(3)(C), § 2255(h); see United States
v. Tatum, 233 F.3d 857, 858 (5th Cir. 2000).
      Finally, Rainwater contends that the district court, in issuing the
Corrected Amended Judgment pursuant to this court’s limited remand for the
express purpose of correcting the Amended Judgment, erred by failing to
consider the double jeopardy issue raised in his Rule 36 motion. He argues that
the failure to address the double jeopardy issue results in a manifest miscarriage
of justice. Rainwater has not shown that an exception to the mandate rule
existed such that the district court erred by not considering his double jeopardy
claim. See United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002); United
States v. Benbrook, 119 F.3d 338, 340 (5th Cir. 1997).
      AFFIRMED; AUTHORIZATION TO FILE A SECOND OR SUCCESSIVE
28 U.S.C. § 2255 MOTION DENIED.



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