* This order and judgment is not binding precedent, e xcept under the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

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

### December 28, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 05-5105

v. (D.C. No. 91-CR-158-HDC) JERRY CRAIG COLEMAN, (N.D. Oklahoma)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before EBEL , McKAY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore subm itted without oral argument. In 1992, Defendant was convicted of armed bank robb ery, in violation of 18 U.S.C. § 2113(a) and (d), and of using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). He was then se ntenced to 322 months’-2-

imprisonment for the two crimes. In 2001, contending that the court engaged in doubl e counting by enhancing his armed robbery sentence for both the “use of a f irearm” and the “threat of death,” Defendant moved to modify a term of his imp risonment under 18 U.S.C. § 3582(c). The district court denied Defendant’s mot ion, and Defendant did not appeal that denial. Then, in 2005, Defendant filed a second motion to modify his sentence under § 3582(c), which the district court denied for lack of jurisdiction. He now appeals the district court’s denial of that motion. “We review de novo the district court’s interpretat ion of a statute or the sentencing guidelines.” United States v. Acosta-Olivas , 71 F.3d 375, 377 (10th Cir. 1995). “We [also] review de novo the districtcourt’s legal determination that it possessed jurisdiction to modify Defendant’ s sentence.” United States v. Blackwell , 81 F.3d 945, 947 (10th Cir. 1996). “A district c ourt does not have inherent authority to modify a previously imposed s entence; it may do so only pursuant to statutory authorization.” United States v. Mendoza , 118 F.3d 707, 709 (10th Cir. 1997). Under § 3582, a district court may only modify a se ntence in three specific circumstances: (1) It receives a motion from the Bureau of Prisons finding that special circumstances warrant a reduction and the requestedreduction is consistent with the applicable policy statements issued by the Sent encing Commission;-3-

(2) to the extent expressly permitted by statute orby Fed. R. Crim. P. 35; or (3) a defendant has been sentenced based upon a sen tencing range later lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(2); see United States v. Smartt , 129 F.3d 539, 540 (10th Cir. 1997). Defendant argues that his sentence was improperly e nhanced under the United States Sentencing Guidelines for making an e xpress threat of death because he was also convicted of violating 18 U.S.C . § 924(c). But Defendant’s argument that the district court erred by enhancing his sentence on Count I to a total offense level of twenty-four is irrelevant. Defendant’s total offense level was set at a thirty-four because of his status as acareer criminal offender under U.S.S.G. § 4B1.1. Although the presentence report initially calculated Defendant’s offense level at twenty-four for Count I by adding two levels for use of an express threat of death, that enhancement bec ame moot and was not used once it was determined that the career offender pro vision of U.S.S.G. § 4B1.1 applied. Because the basis for Defendant’s motion does not fall within one of the specific categories for relief authorized by § 3582 (c), the district court was correct in concluding that it lacked jurisdiction t o consider Defendant’s motion. We therefore AFFIRM the district court’s dismissal of Defendant’s moti on under § 3582(c) for a sentence reduction. Entered for the Court-4- Monroe G. McKay Circuit Judge