*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

In 1992, Defendant was convicted of armed bank robbery, 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 sentenced to 322 months’
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imprisonment for the two crimes. 

In 2001, contending that the court engaged in double counting by enhancing

his armed robbery sentence for both the “use of a firearm” and the “threat of

death,” Defendant moved to modify a term of his imprisonment under 18 U.S.C. §

3582(c). The district court denied Defendant’s motion, 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 interpretation 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 district court’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 court does not have

inherent authority to modify a previously imposed sentence; 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 sentence in three specific

circumstances:

(1) It receives a motion from the Bureau of Prisons finding that special

circumstances warrant a reduction and the requested reduction is consistent with

the applicable policy statements issued by the Sentencing Commission;
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(2) to the extent expressly permitted by statute or by Fed. R. Crim. P. 35; or

(3) a defendant has been sentenced based upon a sentencing 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 enhanced under the

United States Sentencing Guidelines for making an express 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 a career 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 became moot and was not used

once it was determined that the career offender provision 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 to consider Defendant’s motion. 

We therefore AFFIRM the district court’s dismissal of Defendant’s motion under

§ 3582(c) for a sentence reduction.

Entered for the Court
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Monroe G. McKay

Circuit Judge