UNITED STATES COU RT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plainti ff-Appellee,

v. TAMEKA DENISE JOHNSON, Defendant -Appellant. No. 18-5096 (D.C. No. 4:15- CR-00027-GKF-1) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , MCKAY , and BACHARACH, Circuit Judges.

________________ _________________ This appeal grew out of Ms. Tameka Johnson’s sentences in feder al and state courts. In federal court, Ms. Johnson moved for a nunc pro tunc ruling that would retroactively ma ke her federal sentence run c oncurrently with her Texas and Oklahoma stat e sentences. The district court denied the motion on the merits , and Ms. Johnson appeal s. The district cou rt was right

* We conclude that oral argument would not materially aid our consideration of this appeal, so we have decided the appeal bas ed on the appeal briefs and the record on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgme nt does not constitut e binding precedent e xcept under the doctrines of law of the case, res judicata, and colla teral estoppel. But the order and judgment may be cited for its persuasive valu e under Fed. R. App. P. 32.1(a) and Tenth Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### March 25, 2019
Elisabeth A. Shumaker Clerk of Court2 to disallow relief, but it shou ld have dismissed Ms. Johnson’s motion for lack of jurisdiction rather t han rule on the merits.
1. Ms. Johnson seeks modification of her federal sentence to remed y an alleged delay in the start of her federal sentence. Ms. Johnson pleaded guilty in f ederal court to receiving stolen government funds, and the court sentenced her in August 2016 to 47 months’ imprisonment. When imposing the federal sentence, the c ourt recognized that Ms. Johnson would be sentenced in Texas for ano ther crime and anticipated that the T exas court would run its senten ce concurrently with the federal sen tence. But the f ederal court e xpressly declined to order the federal sentence to run concurrently with the future
Texas sentence. 1 In the Texas case, the court sentenced Ms . Johnson in October 2 016 to 36 months’ imprisonment and ordered the sentence to run conc urrently with her federal sentence. She c ompleted the Texas sentence on November 21, 2016, but she remained in Tex as jails on other charges unti l October 2017. Though Ms. Johnson was in a T exas jail, the U.S. Marshals Service lodged a detainer ag ainst her in July 2017 . Despite the detaine r, however, Ms. Johnson did not enter federal custody when she completed al l of her

1 In contrast, the court ordered the federal sen tence to run c oncurrently with Ms. Johnson’s anticipated sentence in Tulsa County, Oklaho ma.3 Texas sentences. She was instead extradited to Oklahoma, where she stayed in jail until her rel ease in February 2018 . Two months later (A pril 2018), federal marshals arrested Ms. John son and she started serving h er federal

sentence.

Ms. Johnson contends tha t the U.S. Marshals S ervice should have lodged the detainer by the time that she discharged her initial Texas sentence (November 21 , 2016) and that the d elay in the detainer extended her time of incarceration by almos t two years. To remedy the al leged delay in the detainer, Ms . Johnson seeks modification of her federal sentence to state that it was to also run concurrently with the subsequent incarcerations in Texas and Oklahoma (which ended in February 2018).
2. The district court lacked jurisdi ction to consider Ms. Johnson’ s motion. Because the district court’s juri sdiction involves a question o f law, we engage in de novo review. United States v. Luna-Acosta , 715 F.3d 860, 864 (10th Cir. 2013). Applying d e novo review, we start by cons idering whether Congress has expressly granted jurisdiction to the dist rict court to modify Ms. Johnson’s sentence o n the ground that she had assert ed. United4 States v. Blackwell , 81 F.3d 945, 947 (1 0th Cir. 1996). W ithout an express grant of jurisdiction, the distr ict court would lack jurisdicti on to modify the sentence. See United States v. Mendoza , 118 F.3d 707, 709 (10th Cir. 1997) (“A district cour t does not have inhere nt authority to mo dify a previously imposed sentence; it may do so only pursuant to stat utory authorization.”). Congress has provided a source of jurisdiction in 18 U.S.C. § 3582(b), which permits modif ication of sen tences under

 § 3582(c),

 Federal Rule of Crimin al Procedure 35, and

 18 U.S.C. § 3742. See United States v. Spaulding , 802 F.3d 1110, 1121 n.1 1 (10th Cir. 2015). Ms. Johnson failed to timely invoke Rule 35 , and she did not al lege any circumstances th at would support appella te relief under § 3 742. Thus, § 3582(c) provided the only conce ivable basis for modification of Ms. Johnson’s sentence. This section allows modification: (1) upon motion by the Bureau of Pr isons, (2) upon a change in the sentencing guid elines, or (3) upon statutory authorization (like that provided in 28 U.S. C. § 2241 and § 2255). See 18 U.S.C. § 3582(c)(1)(A ), (c)(1)(B), (c)(2); Spaulding , 802 F.3d at 1121 n.12. None of these apply . The Bureau of Priso ns has not filed a motion, and the applicab le sentencing guidelines have n ot changed.5 Nor has Ms. Johnson i nvoked § 2241 or § 2255. 2 To obtain relief, Ms. Johnson instead relies on two opinions, the text of 18 U.S.C. § 3584, and § 5G1.3 of the United States Sentencing Guidelines. Ms. Johnson points to Barden v. Keohane , 921 F.2d 476 (3rd Cir. 1990), and Setser v. United States , 132 S. Ct. 1463 (2012). Her reliance on these opinions is misguided.
In Barden , the Third Circuit addressed wh ether the Bure au of Prisons could issue a nunc pro tunc order to credit time in state incarceration against a federal sentence. 921 F.2d at 480–81. But the Third C ircuit did not extend this auth ority to federal cou rts. And even if Barden was applicable, we have never adopted its reasoning. See United States v.
Miller , 594 F.3d 1240, 1242 (10t h Cir. 2010) (observ ing that we have never adopted Barden ). Ms. Johnson also misapplies Setser v. United States , 132 S. Ct. 1463 (2012). Setser recognized the autho rity of a federal court at an initial sentencing to run a sentence concurrently with an anticipated s entence. 132 S. Ct. at 1468–70. But this opini on does not authorize a court to later

2 Courts occasionally recharacterize pro se motions. See Castro v. United States , 540 U.S. 375, 381–82 (2003). But a motio n under 28 U.S.C. § 2255 motion woul d be untimely. See 28 U.S.C. § 2255 (f)(1)–(4). And a habeas petition under 28 U.S.C. § 2241 would need to be filed i n the district where Ms. Johnson is conf ined (the District of Minneso ta).6 modify a sentence by m aking it run concurrently with another se ntence. See id. Ms. Johnson relies not only on Barden and Setser but also on the text of 18 U.S.C. § 3584. Section 3584 allows for sentences imposed at different times to be made concurrent. But this section applies only if the federal court orders the sentences to run concurrently. Here th e federal court didn’t order its sentence to run concurren tly with any Te xas sentences; the federal court ordered only that its sentence run concurrently with the anticipated s entence to be issued in Tulsa County, Okl ahoma. Finally, Ms. Johnson invokes § 5G1.3 of t he United States Sentencing Guidelines. This guideline generally allows departur es; it doesn’t authorize retr oactive modification of a sentence previo usly imposed. See United States v. Tetty-Mensah , 665 F. App’x 687, 690 (10th Cir. 2016) (unpublished ) (“[T]he Sentencing Guidelines are not jurisdiction-conferring statutes permitting [a] court [sic] to modify a sentence.”).
* * * Without statutory authority to modify Ms. Johnson’s sentence, t he district court lacked jurisdicti on to rule on the merits and sh ould have dismissed the motion for lack of jurisdiction. See United States v. White , 765 F.3d 1240, 1250 (10th Cir. 2014) (holding that a motion to modify a7 sentence should have been dismisse d for lack of jurisdiction, r ather than denied, when the district court lacked statutory authority to m odify the sentence). We therefore (1) vacate the district court’s denial of Ms. Johnson’s motion and (2) remand the case to the district court with instructions to dismiss the motion for lack of jurisdiction. We also grant Ms. Johnson’s motion to suppleme nt the record on appeal.

Entered for the Court

Robert E. Bacharach Circuit Judge