## FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT October 29, 2003 THOMAS K. KAHN CLERK 

### [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH

CIRCUIT

________________________ No. 03-11964 Non-Argument Calendar

________________________ D.C. Docket N

o. 93-08093-CR-W

JZ
UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus RICHARD ALLEN STOSSEL, Defendant-App ellant.

__________________________ Appeal from t

he United States D

istrict Court for t

he Southern District of Florida

_________________________ (October 29, 2003)

Before TJOFL

AT, BIRCH a

nd BLACK, Cir

cuit Judges.2



### PER CURIAM: Nine years after his original conviction, federal prisoner Richard Allen Stossel appeals

pro se the district court’ s denial of his post-co nviction motion fo

r reduction of sentence filed under 18 U.S.C. § 3582(b)(3). He alleges the district court improper

ly calculated t

he sentencing guidelin

es, which resulte

d in “duplicative co

unting” and an imp

roper two-level e

nhancement. T

he Government argues the district court lacked juri sdiction over Appell ant’s motion be

cause § 3582(b)(3) does not a

uthorize district c ourts to modify sentences. We review whe

ther a court has j urisdiction as a quest ion of law subject

to plenary review. United States v. M aduno , 40 F.3d 1212, 1215 (11th Cir. 1994). When the language

of a statute is unam

biguous, we only review the statute ’s plain meaning. United States v. Ballinger , 312 F.3d 1264, 127 4 (11th Cir. 2002). 18 U.S.C. § 3582(b)(3) provides: “Notwithstanding the fact that a sentence to imprisonm

ent can subsequently

be . . . appeale

d and modified,

if outside the guideline range, pur

suant to the provisions of section 3742[,] a

judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.” We have never a ddressed whether a

district court has j urisdiction1 We have referenced § 3582(b)(2) in a footnote. United States v. Br own 332 F.3d 1341,

1344 n.4 (11th Cir. 2003). The footnote provided that a particular sentencing guidelines amendment was retroactive, and, if applicable, could warrant a sentence reduction un der § 3582( b)(2) . It appears , however, we were actually refer ring to § 3582(c)(2), because only § 3582(c)(2) provides for a sentence reduction pursuant to a retroactive sentencing guidelines a mendment. 3 

### under 18 U.S.C. § 3582(b) to consider a motion to modify a sentence. 1 

### The Eighth Circuit, however, has ex amined this issue. United States v. A uman , 8 F.3d 1268, 1271 (8th Cir. 1993). In Auman , the Eighth Circuit held § 3582(b) was “unambiguous on its face” and merely “ defined ‘final judgment.’” Id. In dicta, the court a lso noted the legisl ative his tory of § 358 2(b) bols tered the Co urt’s reading that § 3582(b) merely defined finality and was not a vehicle for sentence modification. Id. Accordingly, the Eighth Circuit h

eld § 3582(b) “doe s not grant jurisdiction to a district court to do anything, let alone correct an illegal sentence.” Id. We agree with the Eighth Circuit and hold the district court lacked jurisdiction under 1 8 U.S.C. § 3582( b)(3) to consider A

ppellant’s mo

tion to modify his sentence. Section 3582(b)(3) is not a vehicle for obtaining a sentence2 Federal courts are obligated to look b eyond the label of a pro se inmate’s motion to d etermine if it is cognizable under a different statutory framework. United States v. Jordan , 91 5 F.2d 622, 624-25 (11th Cir. 1990). Here, Appellant’s motion could be construed as an appeal under 18 U.S.C. § 3742, a motion under 18 U.S.C. § 35 82(c), a Federal Rule of Criminal Procedure 35 motion, or a motion to vacate under 28 U.S.C. § 2255. None o f these construc

tions, however, a

id Appellant. First, to appeal under § 3742(a), Appellant needed to file a n appeal wit

hin 10 days of sentencing. United States v. Pe ase , 331 F.3d 809, 816 n.18 (11th Cir. 2003); Fed. R. App. P. 4(b)(1). Here, however, Appellant waited 9 years before filing his instant motion, thus making it untime ly and § 3742 i napplicable. Second, Appellant’s motion could fit under § 3582(c) only if he wa s arguing his sentence shou

ld be modified base

d on a subsequent se

ntencing guide

line amendment. 1 8 U.S.C. § 3582(c)(2). Appellant, however, clearly states he is appea ling the application of the guidelines at sentencing and doe s not reference any guideline amendment, making § 3582(c)(2) inapplicable. Third, Rule 35 only allows sentence

modification for: (1) correcting “arithmetical, technical, or other clear error” within 7 days after sentencing, or (2) reducing a sentence for substantial assistance to the government. Fe

d. R. Crim. P. 35(a),

(b). Appell ant is not entitled to relief under either option because he filed his motion well after the 7-day limitation period and

his claim did not involve substantial assistance. Finally, Appellant is not entitled to relief under § 2255 because he did not claim (1) the district court lacked jurisdiction to impose the sent e nce, (2) the sentence was in e

xcess of the maximum au thorized law, (3) t

he sentence was

otherwise subjec

t to collateral att ack b y a

claim of a constitutional violation, or (4) the proceeding was “infected with any error of fact or law of the ‘fundamental’ character that renders the entire proceeding

irr egular and invalid.” United States v. Ad donizio , 99 S. Ct. 2235, 2240-41 (1979). Accordingly, the district court had no jurisdiction over Appellant’s motion whether considered under its a ctual label of § 3582(b)(3) or construed under any different statutory framework.

3 Appellant also fil

ed a motion to

proceed without transcripts. We deny the motion as moot. 4 

### modification, but merely defines finality.Consequently, the district court lacked jurisdiction to rule

on the merits of

his motion. 2 

### Accordingly, we vacate and remand for the district court to dismiss for lack of jurisdiction. 3


### VACATED and REMANDED.