*

 This order and judgment is not binding precedent, except under the doctrines of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

JUN 18 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee,

v.

BILLY F. MARCH,

Defendant-Appellant.

No. 97-3382

(D.C. No. 97-CV-3391-JTM)

(D. Kan.)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered

submitted without oral argument.

Billy March seeks a certificate of appealability to appeal the denial of his motion

to modify his sentence as untimely filed. Because March has failed to make “a substantial
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showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his

request for a certificate of appealability and dismiss the appeal.

March was convicted by a jury in 1992 of four counts of bank robbery, in violation

of 18 U.S.C. § 2113(a), and was sentenced to 210 months’ imprisonment. His conviction

and sentence were affirmed in his direct appeal. United States v. March, 999 F.2d 456

(10th Cir. 1993). March filed a motion to modify his sentence pursuant to 18 U.S.C. §

3582 on August 29, 1997, arguing his criminal history was incorrectly calculated and that

Amendment 382 to U.S.S.G. § 4A1.1 should have been applied. His primary complaint is

that his five prior aggravated robbery convictions should have been treated as one under

the “related sentence” subsection of § 4A1.1(f). The district court found § 3582 did not

provide the court with any authority to grant relief, construed the motion as one brought

under 28 U.S.C. § 2255 to correct an illegal sentence, and denied the motion as untimely

filed.

On appeal, March contends he was denied procedural and substantial due process

at sentencing, and that the district court should have considered his motion under 18

U.S.C. § 3582(c)(2) and § 3553(a).

The court may not modify a term of imprisonment once it has been imposed

except that--

. . . 

(2) in the case of a defendant who has been sentenced to a term of 

imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon

motion of the defendant or the Director of the Bureau of Prisons, or on its

own motion, the court may reduce the term of imprisonment, after
-3-

considering the factors set forth in section 3553(a) to the extent that they are

applicable, if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). 

Amendment 382 to U.S.S.G. § 4A1.1 became effective November 1, 1991, and

March was sentenced on September 8, 1992. There is nothing in the record before us to

indicate the sentencing court did not consider Amendment 382, which was in effect ten

months prior to sentencing.

We also decline March’s request that we invoke jurisdiction pursuant to 28 U.S.C.

§ 1651(a). As we conclude there was no error committed in March’s sentencing, there is

no basis for concluding a miscarriage of justice occurred in this case.

The district court properly construed March’s motion under 28 U.S.C. § 2255 and

determined the motion was untimely filed. We DENY a certificate of appealability and

DISMISS the appeal. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge