United States v. Wayt , 55 F. App'x 890 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 10 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-8084
v. D.C. No. 99-CR-92-05-J
(D. Wyoming)
GLEN WAYT,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Glen Wayt, proceeding pro se, appeals the district court’s denial of his
motion for correction or reduction of sentence brought pursuant to Rule 35 of the
*
This order and judgment is not binding precedent, except under the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.
Federal Rules of Criminal Procedure. 1 In denying the motion, the district court
concluded that Wayt had not advanced any lawful basis for a sentence reduction
pursuant to Rule 35.
This court has closely reviewed Wayt’s appellate filings and reviewed de
novo the district court’s order and the entire record on appeal. That review
demonstrates that the district court’s resolution of Wayt’s motion is correct. In
particular, it is clear that: (1) Wayt is not entitled to relief under Rule 35(a)
because the case was not before the district court on remand from this court; (2)
Wayt is was not entitled to relief under Rule 35(b) because, inter alia, the
government has not moved for a sentence reduction; and (3) Wayt is not entitled
to relief under Rule 35(c) both because the motion was not filed within seven
days of the imposition of sentence and because the motion failed to identify any
arithmetical or technical error in the sentence. In fact, it is clear that the proper
vehicle for seeking the type of relief sought by Wayt is a motion to correct or
vacate illegal sentence pursuant to 28 U.S.C. § 2255. 2 Accordingly, this court
1
We note that effective December 1, 2002, Rule 35 was amended.
Although substantially redrafted, the amended version of Rule 35 does not alter
the outcome of this case in any way.
2
The district court did not err in failing to sua sponte construe Wayt’s Rule
35 motion as a § 2255 motion. See United States v. Torres, 282 F.3d 1241, 1245-
46 (10th Cir. 2002) (“We have . . . held that district courts should only
recharacterize a motion as a § 2255 petition where (1) the petitioner, having been
made aware of the risks associated with recharacterization, assents, or (2) the
district court concludes that the petitioner’s motion can only be considered under
-2-
exercises jurisdiction pursuant to 18 U.S.C. § 3742 and AFFIRMS the district
court’s denial of Wayt’s Rule 35 motion. See United States v. McMillan, 106
F.3d 322, 324 n.4 (10th Cir. 1997) (holding that jurisdiction to hear appeal from
resolution of a Rule 35 motion arises under 18 U.S.C. § 3742, rather than 28
U.S.C. § 1291).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
§ 2255 and offers the movant the opportunity to withdraw the motion rather than
have it so recharacterized.” (quotation omitted)).
-3-