* This order and judgment is not binding precedent, e xcept under the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.

** The Honorable John L. Kane, Senior District Judge, United States District Court for the District of Colorado, sitting by desi gnation. 

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

### MAY 2 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DANNY DENNIS SUNDAY,

Defendant-Appellant. No. 01-5218 (D.C. No. 00-CR-78-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before O’BRIEN and PORFILIO , Circuit Judges, and KANE , ** Senior District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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.-2-

Defendant Danny Dennis Sunday appeals the district court’s denial of motions by both defendant and the government seekin g reconsideration of the court’s earlier refusal to grant defendant a downward departure for his substantial assistance in prosecuting other offenders. See United States Sentencing Commission, Guidelines Manual (USSG), §5K1.1. We affirm. On August 10, 2000, defendant pled guilty to two co unts of improperly disposing of hazardous waste, pursuant to a plea ag reement in which the government agreed to request a three-level downwarddeparture based on defendant’s substantial assistance. At the sentenc ing hearing on November 13, 2000, the government moved for the downward departu re. The district court denied the motion, ruling that defendant had done n othing more than take responsibility for his acts. The court noted that no prosecutions had been brought based on defendant’s information, and emphasized th at it considered defendant’s conduct “totally reprehensible.” Aplee. Br., doc. 4 at 11. The court held open the possibility of a future reduction, however, stating :

Now, I understand that there are other provisions, and perhaps under Rule 35(b) that (sic) the government does go forward and indicts someone else in this case and does require [defendant’s] help or the fact that he is willing to testify ends up i n something being done, but . . . . I’d rather be at that point and c onsidering what [defendant] actually did than kind of decide now wh at he did may or may not be helpful down the road.-3-

Id. at 8-9. The court sentenced defendant to concurre nt sixteen-month sentences, followed by three years of supervised release. The court also delayed defendant’s report date by three months to permit the governmen t to pursue prosecutions based on defendant’s information. On October 24, 2001, defendant filed a motion to re consider the court’s ruling, seeking a downward departure based on the r ecent convictions of two additional defendants. The district court denied t he motion on November 21, 2001, ruling that a downward departure motion couldbe filed only by the government. On November 30, 2001, the government f iled a “superseding motion” for a downward departure based on defendant ’s substantial assistance. The district court denied the motion on the ground that it was filed more than a year after sentencing and thus was untimely under F ederal Rule of Criminal Procedure 35(b). Defendant appeals. Before we may proceed to the merits of defendant’s appeal, we must examine our jurisdiction. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94-95 (1998) (noting court’s duty to examine it s own jurisdiction and holding that this determination must be made before any con sideration of the merits of a case). Because defendant has completed his sente nce of incarceration and is currently on supervised release, we ordered the parties to brief the issue of-4-

whether his appeal is moot. For the following reas ons, we conclude that we have jurisdiction over defendant’s appeal. A case becomes moot if, at any time during judicial proceedings, there is no longer a live controversy or the parties lack a leg ally cognizable interest in the
outcome. Spencer v. Kemna , 523 U.S. 1, 7 (1998). A case does not become moot, however, when collateral consequences will fl ow from the challenged action. Id. In criminal cases, when a defendant who has serve d his sentence challenges a decision other than his conviction, he must show that the decision continues to have a significant impact that may be remedied by a decision of this
court. See id. at 12-14; United States v. Meyers , 200 F.3d 715, 718-19 (10th Cir. 2000). Further, the potential of an increased sent ence for some future offense is insufficient to defeat mootness. See Spencer , 523 U.S. at 13-15; Meyers , 200 F.3d at 721-22. Here, although defendant has completed his sentence of incarceration, a decision in his favor could still affect the leng th of his supervised release. See USSG § 5D1.1 (linking the imposition of supervisedrelease to the length of a defendant’s sentence). Because defendant’s uncompleted term of supervised release might be shortened if the district court we re to grant the requested three-level downward departure under § 5K1.1, suffi cient collateral consequences flow from its rulings to avoid a finding of mootnes s.-5-

Defendant challenges the district court’s denial of the motions for reconsideration filed by defendant and the governme nt. He argues that the court committed legal error in ruling that it could not e ntertain defendant’s motion because it was not made by the government, and in r uling that the government’s motion was an untimely motion under Rule 35(b). We review de novo the district court’s legal rulings regarding its authority to mo dify a sentence. United States v. Blackwell , 81 F.3d 945, 947 (10th Cir. 1996). A district court has no “inherent authority to modi fy a previously imposed sentence; it may do so only pursuant to statutory a uthorization.” United States v. Smartt , 129 F.3d 539, 540 (10th Cir. 1997) (quotation omi tted); Blackwell , 81 F.3d at 949. Limited authority to modify a sent ence is provided by 18 U.S.C. § 3582(c), and by Rule 35. Defendant does not argu e that his motion satisfied the requirements of either § 3582(c) or Rule 35. Defendant argues instead that because the district court originally had the authority to depart downward at sentencing, his mot ion was simply a request for reconsideration of its refusal to do so, which coul d be made by any party. This cannot be the rule, however, because if defendants could request reconsideration of their sentences at any time, there would be no r eason for the grants of authority in § 3582(c) and Rule 35. To the contrary, the dis trict court’s authority to modify a previously imposed sentence is restricted to a fe w, carefully delineated-6-

situations. Although one of these situations is wh en a defendant has provided substantial assistance after sentencing, the plain language of Rule 35(b) requires that the motion be made by the government. We have held that this rule does not authorize the court to reduce a sentence on a defen dant’s motion. Blackwell , 81 F.3d at 948. The district court did not err, th erefore, in denying defendant’s motion for reconsideration. For the same reason, the government’s motion cannotbe viewed as a free-floating motion for reconsideration, but inste ad must fit into one of the limited categories authorized by the statute and pr ocedural rule. Again, the plain language of the rule required the government to mak e its motionwithin one year of sentencingunless defendant’s substantial assistance involvedevidence that he did not know until a year or more after sentencing. See id. Further, the district court was without power to enlarge the time allowedfor filing a motion under Rule 35. See Fed. R. Crim. P. 45(b)(2). Because the strict dic tates of Rule 35 cannot be evaded by styling the motion as one for r econsideration, the district court did not commit legal error by ruling that the government’s motion was untimely.-7-

The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge