                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 17 2015

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50644

               Plaintiff - Appellee,             D.C. No. 2:87-cr-00571-SVW

  v.
                                                 MEMORANDUM*
ELRADER BROWNING, Jr.,

               Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                             Submitted March 10, 2015**

Before:        FARRIS, WARDLAW, and PAEZ, Circuit Judges.

       Elrader Browning, Jr., appeals pro se from the district court’s order denying

his motion for correction of an illegal sentence under Federal Rule of Criminal

Procedure 35. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       Browning first contends that he is entitled to relief under Rule 35 because

the district court did not use the phrase “continuing series of violations” in its jury

instruction on the continuing criminal enterprise count at trial. We review for

abuse of discretion the district court’s denial of the Rule 35 motion. See United

States v. Stump, 914 F.2d 170, 172 (9th Cir. 1990). Browning’s allegation of an

erroneous jury instruction is not a cognizable claim under the prior version of Rule

35, which the parties agree applies here. See Fed. R. Crim. P. 35(a) (1987); United

States v. Montalvo, 581 F.3d 1147, 1151-52 (9th Cir. 2009) (Rule 35 only allows

for correction of an illegal sentence and is not meant to permit reexamination of

trial errors.).

       Browning next contends that his sentence violates the Double Jeopardy

Clause because he was sentenced for both engaging in a continuing criminal

enterprise and the predicate drug trafficking offenses. Even assuming that such a

claim is cognizable under Rule 35(a), Browning’s argument is foreclosed by

Garrett v. United States, 471 U.S. 773, 793-95 (1985).

       Browning last contends that his life sentence on Count 37 exceeded the

statutory maximum because the judge, not the jury, determined the drug quantity.

Browning’s contention is untimely under Rule 35(a) because he did not bring this

claim within 120 days of the imposition of his sentence. See Montalvo, 581 F.3d at


                                            2                                    13-50644
1153-54. Even if Rule 35’s filing deadline is subject to equitable tolling, as

Browning argues, he has not shown that he is entitled to the more than 20 years of

tolling needed to render his claim timely.

      AFFIRMED.




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