FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 30, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-14566

Non-Argument Calendar

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D. C. Docket No. 97-00074-CR-CAR-5

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HOMER GREEN,

a.k.a. Jojo,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(April 30, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

Homer Green appeals the district court’s denial of his pro se motion to
reconsider the sentence imposed after the district court granted his motion for a

reduction of sentence under 18 U.S.C. § 3582(c)(2). Because we conclude the

district court lacked jurisdiction to reconsider the sentence imposed, we vacate and

remand.

In 1999, Green was convicted of conspiracy to possess and possession with

intent to distribute crack cocaine and sentenced to 360 months’ imprisonment.

In 2008, Green filed a pro se motion to reduce his sentence under

§ 3582(c)(2) based on a sentencing guideline amendment that retroactively lowered

the base offense level applicable to crack offenses. On May 19, 2008, the district

court granted the motion, determined the new guidelines range to be 292 to 365

months’ imprisonment, and sentenced Green to 292 months’ imprisonment.

Thereafter, on June 5, 2008, Green filed a motion for reconsideration in

which he objected to the manner in which the court determined the new guidelines

range and sentence. On August 26, 2009, the district court denied the motion.

This appeal followed.

We review de novo whether the district court had jurisdiction over Green’s

motion to reconsider. United States v. Phillips, 597 F.3d 1190, 1194 n.9 (11th Cir.

2010).

The authority of a district court to modify an imprisonment sentence is

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narrowly limited by statute. Under § 3582(c), a court may not modify an

imprisonment sentence except in these three circumstances: (1) where the Bureau

of Prisons has filed a motion and either extraordinary and compelling reasons

warrant a reduction or the defendant is at least 70 years old and meets certain other

requirements; (2) where another statute or Federal Rule of Criminal Procedure

(“Rule”) 35 expressly permits a sentence modification; or (3) where a defendant

has been sentenced to a term of imprisonment based on a sentencing range that was

subsequently lowered by the Commission and certain other requirements are met.

See 18 U.S.C. § 3582(c)(1)-(2); Phillips, 597 F.3d at 1194-95.

Our recent decision in Phillips dictates the outcome of Green’s case. Once

the court modified Green’s sentence under § 3582(c)(2), there was no authority for

the court to further modify the sentence except as expressly provided by Rule 35.

Rule 35, however, permits the court to correct a sentence only within seven days.

See Fed. R. Crim. P. 35(a); Phillips, 597 F.3d at 1195-96. And this time frame is

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jurisdictional. Phillips, 597 F.3d at 1196-97.

Here, the district court granted Green’s § 3582(c)(2) motion on May 19,

2008. The court took no action to correct the sentence within seven days. In fact,

 The rules have since been amended to provide that the court may correct a sentence

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within fourteen days. That amendment did not become effective until December 1, 2009. See

Fed. R. Crim. P. 35 (2009). Thus, at the time the district court considered Green’s motion, the

court was under the seven-day limitation. 

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Green did not file for reconsideration until June 5, 2008, and the district court did

not rule on the motion until August 26, 2009. Because more than seven days

elapsed, the district court lacked jurisdiction to reconsider Green’s sentence.

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Accordingly, we VACATE and REMAND with instructions for the district

court to dismiss the motion for reconsideration.

 Although motions for reconsideration are permitted in criminal cases generally, such 2

motions do not apply in proceedings under § 3582(c)(2). See Phillips, 597 F.3d at 1199-1200. 

The proper avenue for Green to challenge the manner in which the district court determined his

new guidelines range was to appeal the district court’s order granting his § 3582(c) motion

within the time permitted. 

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