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 contends that the district court erred by denying his Rule 35 motion. He argues that his sentence is illegal because the sentencing court did not have jurisdiction to sentence him nunc pro tunc on counts 38-43 of his conviction after he had already filed his initial notice of appeal, and because the court’s imposition of sentence on those counts in a second sentencing hearing violated the Double Jeopardy Clause.

The district court did not abuse its discretion by denying Browning’s motion. See United States v. Stump, 914 F.2d 170, 172 (9th Cir.1990). Browning’s claim that the district court lacked jurisdiction to sentence him nunc pro tunc should have been brought in his 28 U.S.C. § 2255 motion. See United States v. Mathews, 833 F.2d 161, 164 (9th Cir.1987), abrogated on other grounds by Young v. Holder, 697 F.3d 976, 986 (9th Cir.2012) (en banc). Even assuming Browning’s challenge to the nunc pro tunc sentencing is cognizable…