United States v. Elrader Browning, Jr.

MEMORANDUM

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.

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.…