United States v. Clark

Case: 21-10384 Document: 00516237860 Page: 1 Date Filed: 03/14/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit FILED

March 14, 2022

No. 21-10384

Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Dion Clark,

Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:20-CV-936

Before Jones, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:*

Dion Clark, federal prisoner # 55856-177, seeks a certificate of appealability (COA) to appeal the district court’s partial denial of his 28 U.S.C. § 2255 motion challenging his convictions of conspiracy to commit interference with commerce by robbery and brandishing a firearm during and in relation to a crime of violence.

Case: 21-10384 Document: 00516237860 Page: 2 Date Filed: 03/14/2022

No. 21-10384

This court must examine the basis of its own jurisdiction, sua sponte, if necessary. Trent v. Wade, 776 F.3d 368, 387 (5th Cir. 2015). “An appeal may be taken to the court of appeals from the order entered on the [§ 2255] motion as from a final judgment on application for a writ of habeas corpus.” § 2255(d). Here, however, Clark’s appeal is premature as he filed it before the district court resentenced him. As such, we lack jurisdiction. See Andrews v. United States, 373 U.S. 334, 340 (1963).

Accordingly, a COA is DENIED and this matter is DISMISSED for lack of jurisdiction.