     Case: 15-50319       Document: 00513276116         Page: 1     Date Filed: 11/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-50319
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                         November 18, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

RODOLFO BRISENO-MARTINEZ, also known as Rudy,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-3172-3


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       In 2011, Rodolfo Briseno-Martinez, federal prisoner # 96402-004,
pleaded guilty to conspiracy to possess, with intent to distribute, more than
five kilograms of cocaine, in violation of 21 U.S.C. §§ 841, 846, and conspiracy
to possess firearms in furtherance of drug trafficking crimes, in violation of 18
U.S.C. § 924. Sentenced, inter alia, to 204 months’ imprisonment, he did not
appeal his conviction or sentence.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 15-50319    Document: 00513276116     Page: 2   Date Filed: 11/18/2015


                                 No. 15-50319

      Proceeding pro se, Briseno challenges the district court’s denial of his
motions in 2014 to dismiss the indictment, conviction, and sentence, for lack of
exclusive legislative and subject-matter jurisdiction.         He asserts the
indictment did not confer jurisdiction, and the Government failed to establish
federal jurisdiction. In support, Briseno contends the Government did not
prove he was in a territory or possession of the United States at the time of the
offense.
      We conclude Briseno’s challenge is “from the denial of [ ] meaningless,
unauthorized motion[s]” the district court was without jurisdiction to consider.
United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). The primary means
of collaterally attacking a federal conviction and sentence is a motion under 28
U.S.C. § 2255. E.g., Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). The
district court could not construe Briseno’s motions as arising under § 2255
without: giving him notice of its intent to characterize the motions as § 2255
motions; warning that such a characterization would restrict his ability to file
future § 2255 motions; and allowing him the opportunity to withdraw or
amend. Castro v. United States, 540 U.S. 375, 383 (2003).
      Additionally, as the court noted, the motions could not be construed as
arising under Federal Rule of Civil Procedure 12(b)(1), as Briseno asserted,
because that rule does not govern criminal proceedings. Moreover, although
his motions claimed the court lacked jurisdiction over the criminal proceedings,
Briseno’s criminal matters were no longer pending when he filed the motions;
therefore, they were not authorized under Federal Rule of Criminal Procedure
12(b)(2). See Fed. R. Crim. P. 12(b)(2).
      AFFIRMED.




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