United States v. Pontefract, 101121 FED5, 21-30032

Docket Nº21-30032
Opinion JudgePER CURIAM.
Party NameUnited States of America, Plaintiff-Appellee, v. Clyde J. Pontefract, Defendant-Appellant.
Judge PanelBefore Smith, Higginson, and Willett, Circuit Judges.
Case DateOctober 11, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (5th Circuit)

United States of America, Plaintiff-Appellee,


Clyde J. Pontefract, Defendant-Appellant.

No. 21-30032

United States Court of Appeals, Fifth Circuit

October 11, 2021

Appeal from the United States District Court for the Western District of Louisiana No. 2:08-CR-69-1

Before Smith, Higginson, and Willett, Circuit Judges.


Clyde Pontefract, federal prisoner #13955-035, seeks a certificate of appealability ("COA") to appeal the denial of his motion to modify his sentence and the denial of his Federal Rule of Civil Procedure 60(b) motion for relief from judgment. The district court determined that the Rule 60(b) motion sought reconsideration of its order transferring Pontefract's second 28 U.S.C. § 2255 motion to this court as an unauthorized successive § 2255 motion.

In his COA motion, Pontefract contends that the district court erred in failing to consider the merits of his Rule 60(b) motion, which he argues was a true Rule 60(b) motion alleging both fraud on the court during his plea and sentencing proceedings and extraordinary circumstances; he contends that Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), applied to that motion. Additionally, he challenges the denial of his motion to modify his sentence per 18 U.S.C. § 3582(c) or 3583(e)(2), reasoning that under United States v. Haymond, 139 S.Ct. 2369 (2019), his terms of imprisonment and supervised release together could not exceed 30 years and that any term of supervised release extending beyond the 30-year total was required to be modified to remove any conditions. In Pontefract's view, Haymond applies retroactively.

Pontefract need not obtain a COA to appeal the denial of any request for a modification of his sentence under § 3582(c) or 3583(e)(2). See 28 U.S.C. § 2253(c). But none of the scenarios he describes regarding these statutes is applicable to his case. See §§ 3582(c), 3583(e)(2). The district court therefore did not abuse its discretion in denying Pontefract's motion to the extent he sought a modification in his sentence under §§ 3582(c) and 3583(e)(2).

Although Pontefract attempts to incorporate by reference the arguments that he made in his Rule 60(b) motion, he may not do so. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Additionally, Pontefract has abandoned, by failing to brief, any argument that his Rule 60(b) motion challenged the...

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