* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### February 24, 2006 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,

vs. JAMES CULP, Defendant - Appellant. No. 05-3283 (D.C. No. 97-CR-40005-SAC)

(D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , MCKAY , and LUCERO , Circuit Judges. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. James Culp, an inmate appearing pro se, seeks to ap peal from the district court’s denial of his motion for a reduction of sen tence pursuant to 18 U.S.C.- 2 -

§ 3582. The district court held that it lacked jur isdiction to consider Mr. Culp’s motion, and to the extent it sought relief pursuantto 28 U.S.C. § 2255, transferred it to the court of appeals as a second or successiv e motion. Doc. 312 at 6. Mr. Culp urges the court to remand and instruct the dis trict court to apply United States v. Booker , 543 U.S. 220 (2005), retroactively on re-sentenci ng. After a jury trial, Mr. Culp was convicted of consp iring to distribute cocaine, 21 U.S.C. § 846, and sentenced to 151 mont hs imprisonment. This court affirmed the judgment. United States v. Culp , 188 F.3d 519 (10th Cir. 1999) (unpublished). A check of the district court docke t sheet reveals the following. On October 6, 2000, Mr. Culp filed a motion pursuan t to 28 U.S.C. § 2255. (Doc. 253). The district court denied Mr. Culp relief on February 7, 2001. (Doc. 263). Mr. Culp subsequently filed a motion pursuant to Ru le 59(e), which the district court treated as a successive § 2255 motion and tra nsferred it to this court. (Doc. 270). We denied leave to file a second or successi ve § 2255 motion. (Doc. 272). On April 11, 2005, Mr. Culp filed the instant motio n. (Doc. 308). In a memorandum and order, the district court determined that it had no jurisdiction under 18 U.S.C. § 3582(c), and also transferred the motion to this court. (Doc. 312). On September 22, 2005, this court denied Mr. Culp authorization to file a second or successive § 2255 motion and dismissed th e matter. Mr. Culp filed this appeal from the district court’s memorandum and ord er on November 3, 2005. He- 3 -

challenges the district court’s determination that it did not have jurisdiction under § 3582(c)(2). The district court plainly lacked jurisdiction to r educe Mr. Culp’s sentence. United States v. Moreno , 421 F.3d 1217, 1220 (11th Cir. 2005) (Bookeris inapplicable to § 3582(c)(2) motions). To the exte nt Mr. Culp seeks a ruling on a second or successive § 2255 motion, this Court alre ady provided him with one in its September 2005 order. AFFIRMED. Entered for the Court Paul J. Kelly, Jr. Circuit Judge