                             In the
    United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 03-3110
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                 v.

GARLAND JEFFERS,
                                           Defendant-Appellant.

                          ____________
             Appeal from the United States District Court
       for the Northern District of Indiana, Hammond Division.
                 No. 74 CR 57—Allen Sharp, Judge.
                          ____________
    SUBMITTED MAY 18, 2004*—DECIDED NOVEMBER 3, 2004
                       ____________



    Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. A jury convicted Garland Jeffers
in 1975 of engaging in a continuing criminal enterprise


*
  Pursuant to Seventh Circuit Operating Procedure 6(b), this ap-
peal was submitted to the panel that decided Jeffers’ last appeal,
Jeffers v. United States, No. 95-3013, 116 F.3d 1482, 1997 WL
11345 (7th Cir. Jan. 6, 1997) (unpublished) (text in Westlaw).
Neither party has asked for oral argument, see Seventh Circuit
Rule 34(f), and after an examination of the materials submitted
by the parties, we have concluded that argument is unnecessary.
Thus, the appeal is submitted on the briefs and the record. See
FED. R. APP. P. 34(a)(2).
2                                               No. 03-3110

(“CCE”), and the district court ordered him to serve a prison
term of life. In the nearly 30 years since, Jeffers has been
trying without success to obtain relief from that conviction
and sentence. Unfortunately for Jeffers, his present effort
fares no better than his previous attempts. The district
court dismissed for want of jurisdiction Jeffers’ motion to
correct his sentence pursuant to the applicable version of
Federal Rule of Criminal Procedure 35(a). We affirm that
ruling.
  In 1974, a federal grand jury in the Northern District of
Indiana returned two indictments against Jeffers, one charg-
ing him with conspiring to distribute heroin and cocaine, in
violation of 21 U.S.C. § 846, and the other charging him
with engaging in a CCE, in violation of 21 U.S.C. § 848. The
Supreme Court’s opinion in Jeffers v. United States, 432 U.S.
137, 97 S. Ct. 2207 (1977), describes the evidence on which
these charges were based:
    [P]etitioner Garland Jeffers was the head of a highly
    sophisticated narcotics distribution network that oper-
    ated in Gary, Ind., from January 1972 to March 1974.
    The “Family,” as the organization was known, originally
    was formed by Jeffers and five others and was designed
    to control the local drug traffic in the city of Gary.
    Petitioner soon became the dominant figure in the org-
    anization. He exercised ultimate authority over the sub-
    stantial revenues derived from the Family’s drug sales,
    extortionate practices, and robberies. He disbursed
    funds to pay salaries of Family members, commissions
    of street workers, and incidental expenditures for items
    such as apartment rental fees, bail bond fees, and auto-
    mobiles for certain members. Finally, he maintained a
    strict and ruthless discipline within the group, beating
    and shooting members on occasion. The Family typically
    distributed daily between 1,000 and 2,000 capsules of
    heroin. This resulted in net daily receipts of about
    $5,000, exclusive of street commissions. According to
No. 03-3110                                                3

    what the Court of Appeals stated was “an extremely
    conservative estimate,” [532 F.2d 1101, 1105 (7th Cir.
    1976)], petitioner’s personal share from the operations
    exceeded a million dollars over the two-year period.
Id. at 139-40, 97 S. Ct. at 2210 (footnote omitted).
  The government sought to try the conspiracy and CCE
charges together, but Jeffers and his codefendants success-
fully opposed that motion. The § 846 conspiracy charge was
tried first in June 1974, and Jeffers was convicted. The
district court imposed the maximum punishment available:
a prison term of 15 years and a fine of $25,000. We sub-
sequently affirmed his conspiracy conviction. United States
v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), cert. denied, 423
U.S. 1066, 96 S. Ct. 805 (1976). Meanwhile, Jeffers was
tried on the § 848 CCE charge, and on March 26, 1975, a
jury convicted him on that charge. The district court again
imposed the maximum possible punishment: a prison term
of life, and a fine of $100,000. The court also ordered that
the life term on the CCE conviction was to be served con-
secutively to the 15-year term previously imposed on the
conspiracy conviction. We upheld the second conviction and
sentence on appeal. United States v. Jeffers, 532 F.2d 1101
(7th Cir. 1976).
  The Supreme Court subsequently granted certiorari to
consider whether the consecutive prosecutions for § 846
conspiracy and § 848 CCE were contrary to the Double
Jeopardy Clause of the Fifth Amendment. Noting that § 848
requires proof that the accused participated in a series of
violations “in concert with five or more other persons,” a
plurality of the Court, writing through Justice Blackmun,
assumed that § 848, like § 846, demands proof of an agree-
ment among those persons and, consequently, that § 846 is
a lesser included offense of § 848. Jeffers, 432 U.S. at 148-
50, 97 S. Ct. at 2215-16. Although that assumption would
suggest that a defendant could not, consistent with the
4                                                No. 03-3110

Double Jeopardy Clause, be consecutively tried on both
charges, see id. at 150-51, 97 S. Ct. at 2216, the plurality
concluded that Jeffers had waived any objection to the
consecutive trials by successfully opposing a joint trial on
the two charges, id. at 153-54, 97 S. Ct. at 2217-18. The
plurality then went on to address the only potential double
jeopardy problem that remained: cumulative punishments.
Without reaching the question of whether the two prison
terms imposed on Jeffers posed such a problem, see id. at
155 n.24, 97 S. Ct. at 2218 n.24, the plurality concluded that
the two fines that Jeffers had been ordered to pay amounted
to cumulative punishments that Congress had not intended
to authorize. In the plurality’s view, the district court could
not order Jeffers to pay a total fine greater than the
maximum authorized by § 848, which was $100,000. Id. at
156-58, 97 S. Ct. at 2219-20. It therefore concluded that the
judgment should be vacated to that extent and the case
remanded for resentencing. Id. at 158, 97 S. Ct. at 2220.
Justice White, who did not believe that the consecutive pros-
ecutions and convictions for § 846 conspiracy and § 848 CCE
posed any double jeopardy problem, concurred in the
judgment as to Jeffers’ conviction and dissented as to the
multiple fines. Id. at 158, 97 S. Ct. at 2220. Justice Stevens,
joined by three other dissenters, disagreed with the plural-
ity’s conclusion that Jeffers had waived his objection to the
consecutive prosecutions and believed that his conviction on
the CCE charge was contrary to the Double Jeopardy
Clause. Id. at 158-60, 97 S. Ct. at 2220-21. In sum, separate
majorities of the Court coalesced to uphold Jeffers’ CCE
conviction against the double jeopardy challenge (the
plurality and Justice White) but to vacate and remand the
judgment insofar as it imposed cumulative fines (the plural-
ity and the dissenters).
  Since the conclusion of his direct appeal, Jeffers has at-
tempted numerous collateral attacks upon his CCE con-
viction, including a total of five petitions under 28 U.S.C.
No. 03-3110                                                   5

§ 2255, three requests for leave to file additional § 2255
challenges, and three petitions under 28 U.S.C. § 2241. All
have been unsuccessful.
   Jeffers’ most recent effort to obtain relief took the form of
a motion to correct his sentence pursuant to “old” Federal
Rule of Criminal Procedure 35(a)—that is, the version of
Rule 35(a) applicable to offenses committed prior to Novem-
ber 1, 1987. (“The court may correct an illegal sentence at
any time . . . .”) In that motion, Jeffers contended that his
life sentence on the CCE conviction is illegal under the
Double Jeopardy Clause, as revealed by the Supreme
Court’s opinion in Rutledge v. United States, 517 U.S. 292,
116 S. Ct. 1241 (1996). Rutledge held what the plurality in
Jeffers had assumed 20 years earlier: § 846 conspiracy is a
lesser included offense of § 848 CCE. Id. at 300, 116 S. Ct.
at 1247. Consequently, a defendant cannot be cumulatively
punished for violating both § 846 and § 848, because for
purposes of the Double Jeopardy Clause, these two statutes
proscribe the same offense. See id. at 297, 116 S. Ct. at 1245.
The Court held that dual convictions under these two
statutes amount to improper cumulative punishment even
where (as in Rutledge) the sentences imposed are identical
and concurrent, if for no other reason than the special
assessment that federal law requires be imposed on each
conviction. Id. at 301-03, 116 S. Ct. at 1247-48.
  The district court denied Jeffers’ Rule 35(a) motion for
lack of jurisdiction. Relying on our opinion in United States
v. Canino, 212 F.3d 383 (7th Cir. 2000), the court reasoned
that Jeffers’ motion, although denominated as a challenge
to his sentence, was actually an attack upon the underlying
CCE conviction. As such, it was beyond the power of the
court to address under Rule 35(a). United States v. Jeffers,
277 F. Supp. 2d 907 (N.D. Ind. 2003).
  We agree that the district court was without jurisdiction
to consider Jeffers’ motion. A court’s authority under former
6                                                    No. 03-3110

Rule 35(a) is limited to correcting an illegal sentence; “it
does not cover arguments that the conviction is itself im-
proper, for such arguments must be raised under § 2255.”
Canino, 212 F.3d at 384 (citing Hill v. United States, 368
U.S. 424, 430, 82 S. Ct. 468, 472 (1962)). Jeffers has identi-
fied no error in his sentence per se; the sentence is improper
only to the extent that the Double Jeopardy Clause precludes
his CCE conviction. Id.; see Rutledge, 517 U.S. at 303, 116
S. Ct. at 1248 (because petitioner’s second conviction carried
with it a $50 special assessment, “the conviction amounts
to cumulative punishment not authorized by Congress”)
(emphasis ours). Relief would be available to Jeffers, if at
all, only under section 2255.
  Jeffers points out that this court affirmed a grant of relief
under Rule 35(a) to a similarly situated individual in
United States v. Fischer, 205 F.3d 967 (7th Cir. 2000). That
is true enough: pursuant to Rule 35(a), the district court in
Fischer had vacated the defendant’s conspiracy conviction
and sentence on the strength of Rutledge, and on appeal, we
rejected the defendant’s contention that the district court
should have vacated the CCE conviction instead. Id. at 970-
72. The choice of which of the two convictions to vacate, we
explained, was committed to the district court’s sound dis-
cretion, and the defendant had not demonstrated an abuse
of that discretion. Id. Although we did emphasize in Fischer
that the district court’s authority under Rule 35(a) is limited
to errors in sentencing, id. at 971-72, neither party contended
that the district court was without jurisdiction to address
the Rutledge problem under Rule 35(a), and we did not
consider that question sua sponte.1 In view of our subse-


1
  The defendant in Fischer had committed his offenses prior to
the effective date of the current Rule 35, but was convicted after
that date. As a result, both versions of the rule were applicable to
him. 205 F.3d at 969 n.1. We found it unnecessary to discuss the
                                                      (continued...)
No. 03-3110                                                      7

quent decision in Canino addressing that very point,
Fischer does not support Jeffers’ claim for relief pursuant to
Rule 35(a).
  We have construed Jeffers’ appellate briefs as a request
pursuant to 28 U.S.C. § 2244(b)(3)(A) for leave to file a
successive application for relief under section 2255; but we
must deny that request. As we have noted, Jeffers’ claim for
relief is premised on the Supreme Court’s opinion in
Rutledge, but his briefs do not demonstrate that Rutledge
announced “a new rule of constitutional law, made retroac-
tive to cases on collateral review by the Supreme Court, that
was previously unavailable.” § 2255 ¶ 8(2). See Canino, 212
F.3d at 384.
  The judgment of the district court dismissing Jeffers’
Rule 35(a) motion for lack of jurisdiction is AFFIRMED. Jeffers’
(implied) request for leave to commence a second or suc-
cessive collateral attack upon his conviction under section
2255 is DENIED.

A true Copy:
       Teste:

                           ________________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit



1
  (...continued)
differences between the two versions of the rule and their impact
on the case: “Our analysis is equally applicable to either version,
so this opinion will not distinguish between the two; instead it
simply refers to ‘Rule 35.’ ” Id.


                     USCA-02-C-0072—11-3-04
