United States v. Burridge ( 2005 )

  •                                                                         F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS                         MAR 15 2005
                                     TENTH CIRCUIT                      PATRICK FISHER
                                                           No. 03-4099
     v.                                             (D.C. No. 2:97-CR-158-TC)
                              ORDER AND JUDGMENT *
    Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
          John Terry Burridge pled guilty to two counts of wire fraud in violation of
    18 U.S.C. § 1343. The district court sentenced him to 33 months imprisonment
    followed by 36 months supervised release. The court also imposed a $10,000 fine
    and ordered Mr. Burridge to pay restitution in the amount of $7,769. We affirmed
           After examining appellant’s brief and the 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) and 10th Cir. R.
    34.1(G). The case is therefore submitted without oral argument. This order and
    judgment is not binding precedent, except under the doctrines of law of the case,
    res judicata, or 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.
    Mr. Burridge’s sentence on direct appeal. See United States v. Burridge, 
    191 F.3d 1297
     (10th Cir. 1999).
           Mr. Burridge filed a motion to modify his sentence titled “Motion for
    Waiver of Fine” on March 20, 2003. The district court denied Mr. Burridge’s
    motion, holding that the district court lacked inherent authority to modify a
    criminal fine or term of imprisonment. Mr. Burridge subsequently filed a
    “Motion to Clarify that No Interest Is Applicable to Fine.” In response, the
    district court entered an order indicating that the United States Attorney’s Office
    would no longer collect interest on Mr. Burridge’s fine and then denied Mr.
    Burridge’s motion as moot. Mr. Burridge appeals, challenging the district court’s
    denial of his Motion for Waiver of Fine and the related decision on his Motion to
    Clarify that No Interest Is Applicable to Fine. For the reasons stated below, we
    affirm. 1
           We review de novo the district court's legal determination that it lacked
    jurisdiction to modify Mr. Burridge’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).
             We have jurisdiction of this appeal pursuant to the district court’s order of
    May 26, 2004, finding excusable neglect and good cause for Mr. Toliver’s failure
    to file a timely appeal.
    Because Mr. Burridge’s motion for sentence reduction was neither a direct appeal
    nor a collateral attack under 28 U.S.C. § 2255, “the viability of his motion
    depends entirely upon [18 U.S.C. § 3582(c)].” United States v. Trujeque, 
    100 F.3d 869
    , 870 (10th Cir. 1996). Section 3582(c) provides that a “court may not
    modify a term of imprisonment once it has been imposed except” in three limited
    circumstances. 18 U.S.C. § 3582(c); see Blackwell, 81 F.3d at 947-48. First,
    upon motion of the Director of the Bureau of Prisons, a court may reduce the term
    of imprisonment if it finds special circumstances exist. 18 U.S.C. §
    3582(c)(1)(A)(i), (ii). Second, a court may modify a sentence if such
    modification is “otherwise expressly permitted by statute or by Rule 35 of the
    Federal Rules of Criminal Procedure.” Id. § 3582(c)(1)(B). Finally, a court may
    modify a sentence if “a sentencing range . . . has subsequently been lowered by
    the Sentencing Commission pursuant to 28 U.S.C. 994(o).” Id. § 3582(c)(2).
          Mr. Burridge contends the district court had jurisdiction to modify his
    sentence under the second exception. Specifically, he claims the court could
    modify his sentence pursuant to “18 U.S.C. § 3742, Federal Rule of Criminal
    Procedure 35(a), and other legal provisions of statutory and case law.” Aplt. Br.
    at 2. We are not persuaded. By its terms, § 3742 does not grant jurisdiction to a
    district court to review a final sentence. United States v. Auman, 
    8 F.3d 1268
    1270-71 (8th Cir. 1993). This section merely permits a defendant to file in
    district court a notice of appeal to the court of appeals for review of a final
    sentence. Once a notice of appeal has been filed, the district court’s only role is
    to certify the record to the court of appeals. 18 U.S.C. § 3742(d).
          Furthermore, to the extent that Congress codified the district court’s
    inherent power to correct certain sentencing errors in Federal Rule of Criminal
    Procedure 35(a), it provided a strict seven-day time restriction for the court to do
    so. Fed. R. Crim. P. 35(a) (“Within 7 days after sentencing, the court may correct
    a sentence that resulted from arithmetical, technical, or other clear error”);
    Blackwell, 81 F.3d at 949. 2 Mr. Burridge’s motions were not brought within
    seven days of the imposition of his sentence. Because Mr. Burridge has failed to
    show his motion meets the criteria of § 3582(c)(1)(B), we conclude the district
    court had no inherent authority to resentence him in the instant case.
          Mr. Burridge next claims the United States Attorney’s Office continues to
    charge interest on his fine and restitution and asks this court for “an Order to the
    United States Attorney to correct their billing procedures to eliminate all
    interest.” Aplt. Br. at 6. As a general rule, this court has jurisdiction over only
           “The subdivision is not intended to afford the court the opportunity to
    reconsider the application or interpretation of the sentencing guidelines or for the
    court simply to change its mind about the appropriateness of the sentence. Nor
    should it be used to reopen issues previously resolved at the sentencing hearing
    through the exercise of the court’s discretion with regard to the application of the
    sentencing guidelines.” Fed. R. Crim. P. 35 advisory committee’s note (1991
    final orders, those that “‘end[ ] the litigation on the merits and leave[ ] nothing
    for the court to do but execute the judgment.’” Coopers & Lybrand v. Livesay,
    437 U.S. 463
    , 467 (1978) (quotation omitted); 28 U.S.C. § 1291. The district
    court has entered an order indicating that the United States Attorney’s Office is
    no longer entitled to collect interest on Mr. Burridge’s fine. Therefore, an action
    to enforce this ruling is properly brought before the district court should it be
    necessary. 3 Accordingly, we deny Mr. Burridge’s request for an enforcement
             Mr. Burridge’s other contentions are largely identical to his arguments on
    direct appeal. In fact, the only appreciable difference between Mr. Burridge’s
    direct appeal and the instant appeal is his argument based on Blakely v.
    124 S. Ct. 2531
     (2004). According to Mr. Burridge, the district
    court improperly enhanced his sentence based on an “unreasonable and
    inaccurate” calculation of loss, a “fine imposed contrary to the recommendation
    of the presentence report and unlikely to be able to be paid,” and “restitution to a
    party for completely passive acts.” Aplt. Supp. Br. at 2. New rules of criminal
    procedure, however, are applied retroactively only to cases pending on direct
    review or cases that are not yet final. Griffith v. Kentucky, 
    479 U.S. 314
    , 328
            In its brief on appeal, the government asserts it has corrected a clerical
    error pursuant to which interest was continuing to accrue and declares that
    “interest will no longer be assessed on either the fine or restitution.” Aple. Br. at
    7 n.1.
    (1987). Mr. Burridge exhausted his direct appeal and his case was final prior to
    the Supreme Court's decision in Blakely. See id. at 321 n.6 (a case is final when
    “a judgment of conviction has been rendered, the availability of appeal exhausted,
    and the time for a petition for certiorari elapsed or a petition for certiorari finally
    denied”). Thus, Blakely, as well as the Supreme Court's recent decision in United
    States v. Booker, 
    125 S. Ct. 738
     (2005), have no applicability to Mr. Burridge’s
    sentence. See United States v. Price, No. 04-7058, 
    2005 WL 535361
     (10th Cir.
    filed March 8, 2005).
          For the foregoing reasons, the district court’s denial of Mr. Burridge’s
    motions are AFFIRMED.
                                             SUBMITTED FOR THE COURT
                                             Stephanie K. Seymour
                                             Circuit Judge