United States v. Marker ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2102
(D.C. No. 2:12-CR-02005-RB-SMV-1)
WARREN B. MARKER, (D.N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
This appeal involves Mr. Warren Boyd Marker’s motion in the
district court for dismissal/time served. In the motion, Mr. Marker argued
that the court had waited too long to impose the sentence. See Fed. R.
Crim. P. 32(b)(1). As a remedy for this alleged violation, Mr. Marker
sought a reduction in his sentence.
*
Though Mr. Marker requests oral argument, it would not be helpful
because he has not briefed the jurisdictional issue.
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and Tenth Cir. R. 32.1(A).
The district court denied the motion on the merits, and Mr. Marker
has appealed. In our view, however, the district court lacked jurisdiction to
modify the sentence and should have dismissed the motion for lack of
jurisdiction.
A district court may modify a sentence only when Congress has
expressly granted jurisdiction. United States v. Blackwell, 81 F.3d 945, 947
(10th Cir. 1996); see United States v. Mendoza, 118 F.3d 707, 709 (10th
Cir. 1997) (“A district court does not have inherent authority to modify a
previously imposed sentence; it may do so only pursuant to statutory
authorization.”). This jurisdiction has been granted in 18 U.S.C. § 3582
and Federal Rule of Criminal Procedure 36. But Mr. Marker does not allege
any of the circumstances that would trigger § 3582 or Rule 36. See 18
U.S.C. § 3582(c)(1)(A), (c)(1)(B), (c)(2); Fed. R. Crim. P. 36.
The court can sometimes modify a sentence under 28 U.S.C. § 2255,
but Mr. Marker has not invoked § 2255. We have occasionally
recharacterized pro se motions as invoking § 2255 to aid pro se litigants,
but doing so here could do harm to Mr. Marker. See Castro v. United
States, 540 U.S. 375, 381–82 (2003). Mr. Marker already has a § 2255
motion pending in the district court, and that case could be derailed if we
were to recharacterize the present motion as one brought under § 2255.
* * *
2
Without statutory authority to modify Mr. Marker’s sentence, the
district court lacked jurisdiction and should have dismissed the motion
rather than deny relief on the merits. See United States v. White, 765 F.3d
1240, 1250 (10th Cir. 2014) (stating that a motion to modify a sentence
should have been dismissed for lack for jurisdiction, rather than denied,
when the district court lacked statutory authority to modify the sentence).
We therefore (1) deny Mr. Marker’s request for mandamus or a stay,
(2) vacate the district court’s denial of Mr. Marker’s motion, and
(3) remand to the district court with instructions to dismiss the motion for
dismissal/time served based on a lack of jurisdiction.
Entered for the Court
Robert E. Bacharach
Circuit Judge
3