UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff-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 federal 

and state courts. In federal court, Ms. Johnson moved for a nunc pro tunc

ruling that would retroactively make her federal sentence run concurrently 

with her Texas and Oklahoma state sentences. The district court denied the 

motion on the merits, and Ms. Johnson appeals. The district court was right 

 

* We conclude that oral argument would not materially aid our 

consideration of this appeal, so we have decided the appeal based 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 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). 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 25, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

to disallow relief, but it should have dismissed Ms. Johnson’s motion for 

lack of jurisdiction rather than rule on the merits. 

1. Ms. Johnson seeks modification of her federal sentence to remedy 

an alleged delay in the start of her federal sentence. 

Ms. Johnson pleaded guilty in federal court to receiving stolen

government funds, and the court sentenced her in August 2016 to 47 

months’ imprisonment. When imposing the federal sentence, the court 

recognized that Ms. Johnson would be sentenced in Texas for another 

crime and anticipated that the Texas court would run its sentence 

concurrently with the federal sentence. But the federal court expressly 

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 2016 

to 36 months’ imprisonment and ordered the sentence to run concurrently 

with her federal sentence. She completed the Texas sentence on November 

21, 2016, but she remained in Texas jails on other charges until October 

2017. Though Ms. Johnson was in a Texas jail, the U.S. Marshals Service 

lodged a detainer against her in July 2017. Despite the detainer, however, 

Ms. Johnson did not enter federal custody when she completed all of her 

 

1 In contrast, the court ordered the federal sentence to run concurrently 

with Ms. Johnson’s anticipated sentence in Tulsa County, Oklahoma. 
3 

Texas sentences. She was instead extradited to Oklahoma, where she stayed 

in jail until her release in February 2018. Two months later (April 2018), 

federal marshals arrested Ms. Johnson and she started serving her federal 

sentence. 

Ms. Johnson contends that the U.S. Marshals Service should have

lodged the detainer by the time that she discharged her initial Texas 

sentence (November 21, 2016) and that the delay in the detainer extended 

her time of incarceration by almost two years. To remedy the alleged 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 jurisdiction to consider Ms. Johnson’s 

motion. 

Because the district court’s jurisdiction involves a question of law, 

we engage in de novo review. United States v. Luna-Acosta, 715 F.3d 860, 

864 (10th Cir. 2013). Applying de novo review, we start by considering 

whether Congress has expressly granted jurisdiction to the district court to 

modify Ms. Johnson’s sentence on the ground that she had asserted. United 
4 

States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Without an express 

grant of jurisdiction, the district court would lack jurisdiction to modify 

the sentence. 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.”). 

Congress has provided a source of jurisdiction in 18 U.S.C. 

§ 3582(b), which permits modification of sentences under 

 § 3582(c), 

 Federal Rule of Criminal Procedure 35, and 

 18 U.S.C. § 3742. 

See United States v. Spaulding, 802 F.3d 1110, 1121 n.11 (10th Cir. 2015). 

Ms. Johnson failed to timely invoke Rule 35, and she did not allege 

any circumstances that would support appellate relief under § 3742. Thus, 

§ 3582(c) provided the only conceivable basis for modification of Ms. 

Johnson’s sentence. This section allows modification: (1) upon motion by 

the Bureau of Prisons, (2) upon a change in the sentencing guidelines, 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 Prisons has not 

filed a motion, and the applicable sentencing guidelines have not changed. 
5 

Nor has Ms. Johnson invoked § 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 whether the Bureau 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 Circuit did 

not extend this authority to federal courts. And even if Barden was 

applicable, we have never adopted its reasoning. See United States v. 

Miller, 594 F.3d 1240, 1242 (10th Cir. 2010) (observing that we have 

never adopted Barden). 

Ms. Johnson also misapplies Setser v. United States, 132 S. Ct. 1463 

(2012). Setser recognized the authority of a federal court at an initial 

sentencing to run a sentence concurrently with an anticipated sentence. 132 

S. Ct. at 1468–70. But this opinion 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 motion under 28 U.S.C. 

§ 2255 motion would 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 in the 

district where Ms. Johnson is confined (the District of Minnesota). 
6 

modify a sentence by making it run concurrently with another sentence. 

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 the federal 

court didn’t order its sentence to run concurrently with any Texas 

sentences; the federal court ordered only that its sentence run concurrently 

with the anticipated sentence to be issued in Tulsa County, Oklahoma. 

Finally, Ms. Johnson invokes § 5G1.3 of the United States 

Sentencing Guidelines. This guideline generally allows departures; it 

doesn’t authorize retroactive modification of a sentence previously 

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, the 

district court lacked jurisdiction to rule on the merits and should 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 a 
7 

sentence should have been dismissed for lack of jurisdiction, rather than 

denied, when the district court lacked statutory authority to modify 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 supplement the record on appeal. 

Entered for the Court 

Robert E. Bacharach 

Circuit Judge