IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40327 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANTANA LEMUS-FLORES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-97-CR-282-1 -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Santana Lemus-Flores, federal prisoner # 76579-079, appeals

from the district court's August 24, 1999, denial of his motion

to vacate, set aside or correct sentence pursuant to

, and from the district court's February 17, 2000, denial

of his motion to reduce sentence. Lemus-Flores argues that he is

entitled to have his sentence reduced because he provided post-

sentencing assistance to the Government. As authority for his

motion to reduce sentence, Lemus-Flores cited

(e), which authorizes a district court, upon motion of the

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-40327 -2-

Government, to impose an original sentence below the statutory

minimum to reflect the defendant’s substantial assistance in

investigating or prosecuting another person, and U.S.S.G.

§ 5K1.1, which authorizes a district court to depart downward

from a guidelines sentence upon motion of the Government.

Lemus-Flores' February 28, 2000, request for a certificate

of appealability may be construed as a notice of appeal. See

Mosley v. Cozby,

(5th Cir. 1987). However, the

appeal is untimely as to the denial of his § 2255 motion and we

are therefore without jurisdiction to entertain it. See Rule 11,

Rules Governing § 2255 Proceedings; Fed. R. App. P. 4(a).

The appeal is timely as to the district court's denial of

the motion to reduce sentence. However, because the district

court was without jurisdiction to consider the motion, we affirm.

Absent a motion by the Government, there is no authority for the

district court to now reduce Lemus-Flores' sentence. See Fed.

R. Crim. P. 35(b). By the plain language of the amended Rule

35(b), reduction of sentence in this circumstance is permitted

only on the Government’s motion. United States v. Early,

(5th Cir. 1994) (citations omitted). Thus, the district

court did not have jurisdiction to entertain Lemus-Flores' motion

to reduce his sentence.

AFFIRMED.