                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                 UNITED STATES COURT OF APPEALS                  April 25, 2008

                        FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                  Clerk of Court


 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                   No. 07-4259
                                            (D.C. No. 2:99-CR-00441-TS-1)
 v.                                                   (D. Utah)


 ROBERT J. SORENSEN,

             Defendant-Appellant.



                        ORDER AND JUDGMENT *



Before BRISCOE, LUCERO, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument.

      The defendant appeals the denial of his “Motion to Dismiss for Lack

of Jurisdiction,” in which he argued that the district court lacked subject


      *
            This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P.
32.1 and 10th Cir. R. 32.1.
matter jurisdiction over his criminal prosecution. We vacate and remand

with instructions to deny the motion for lack of jurisdiction.




                               BACKGROUND



      The defendant was convicted in 2002, following the entry of a guilty

plea, of one count of possession of a listed chemical, in violation of 21

U.S.C. § 841(d)(2), and one count of possession of methamphetamine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(2). He was sentenced

to 108 months. He did not file an appeal.

      The defendant filed a 28 U.S.C. § 2255 motion in 2004, challenging

his sentence under United States v. Booker, 543 U.S. 220 (2005). He also

alleged that he was denied effective assistance of counsel because trial

counsel failed to object to a sentence enhancement for obstruction of

justice, failed to object to the drug quantity calculation in the presentence

report and failed to object to the fact that the defendant did not receive the

benefit of the safety-valve provisions. The district court denied relief.

Again, the defendant did not appeal.

      In 2007, the defendant filed a pleading in the district court captioned

“Motion to Dismiss for Lack of Jurisdiction.” The defendant, relying on


                                        2
Wickard v. Filburn, 317 U.S. 111 (1942), argued that, because he did not

register or receive benefits from any federal agency regulating controlled

substances, the federal government lacked jurisdiction over his activities.

He contended that the district court had jurisdiction to rule on his motion

under United States v. Ventre, 338 F.3d 1047, 1051 (9th Cir. 2003) (holding

that a waiver of appellate rights in a plea agreement does not deprive the

courts from hearing an appeal based on lack of jurisdiction).

      The district court concluded that Wickard did not support the

defendant’s contention that the court lacked subject matter jurisdiction and

denied relief. The court did not address the issue of whether it had

jurisdiction to rule on the defendant’s motion.




                                DISCUSSION



      We have held that a defendant may only challenge the validity of his

conviction under § 2255. See Bradshaw v. Story, 86 F.3d 164, 166 (10th

Cir. 1996) (§ 2255 is the exclusive remedy to test the validity of a federal

conviction and sentence). We have also held that a defendant may not avoid

the requirements of 28 U.S.C. § 2244(b)(3), i.e., that he must obtain

authorization from this court prior to filing another § 2255 motion, merely


                                        3
by giving another name to the pleading. See United States v. Torres, 282

F.3d 1241, 1246 (10th Cir. 2002) (“[T]o allow a petitioner to avoid the bar

against successive § 2255 petitions by simply styling a petition under a

different name would severely erode the procedural restraints imposed

under 28 U.S.C. §§ 2244(b)(3) and 2255.”).

      Notwithstanding these precedents,it is possible to construe the

defendant’s motion as one filed under Fed. R. Crim. P. 12(b)(3)(B) (“the

court may hear a claim that the indictment or information fails to invoke the

court’s jurisdiction” at “any time while the case is pending”). In United

States v. Valadez-Camarena, 402 F.3d 1259, 1260 (10th Cir. 2005), we

affirmed a district court’s consideration of the merits of a post-conviction

Rule 12(b)(3)(B) motion challenging an indictment. In doing so, we

implicitly held that a district court could consider such a motion without

requiring that it be raised under § 2255.

      We need not resolve any ambiguity in our precedents, however. Like

the challenge in Valadez-Camarena, the defendant’s challenge to his

indictment comes long after the time allowed by Rule 12(b)(3)(B), which, as

noted above, allows such challenges only “while the case is pending.” Nor

has the defendant made any argument that “good cause” to allow his

untimely challenge exists under the exception found in Rule 12(e), or

indeed, that Rule 12(e) applies in these circumstances.

                                        4
      The defendant’s reliance in the district court on Ventre as a basis for

jurisdiction is unavailing. The issue here is not whether the defendant may,

in a timely direct appeal, challenge the court’s jurisdiction in spite of a

waiver of appellate rights, as in Ventre, but rather whether there is any

authority which allows the district court to rule on the merits of the

defendant’s motion.

      We also decline to construe the defendant’s appeal as a request for

authorization to file a second or successive § 2255 motion. Any such

motion would be barred by § 2255(h), which allows a successive motion

only in the presence of “newly discovered evidence” or “a new rule of

constitutional law.” See Brown v. Warden, 315 F.3d 1268, 1270 (10th Cir.

2003) (declining to construe a motion as one filed under § 2255 where doing

so would merely trigger the bar on successive petitions). Neither new

evidence nor an intervening constitutional ruling is present here.



                                CONCLUSION



      The district court order is VACATED and this matter is REMANDED

to the district court with instructions to enter an order denying for lack of

jurisdiction the defendant’s “Motion to Dismiss for Lack of Jurisdiction.”

The defendant’s “Motion in Opposition to This Court’s Order Filed January


                                         5
11, 2008” is DENIED. The mandate shall issue forthwith.



                                        ENTERED FOR THE COURT

                                        PER CURIAM




                                    6
