Leider v. United States ( 2006 )

  •                                                                      F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                                                       November 2, 2006
                          UNITED STATES CO URT O F APPEALS
                                                                      Elisabeth A. Shumaker
                                       TENTH CIRCUIT                      Clerk of Court
              Plaintiff - Appellee,                        No. 06-4079
     v.                                         (D.C. No. 2:04-CR-594-PG C; 2:05-
     RICHARD JOSEPH LEIDER,                                  (D. Utah)
              Defendant - Appellant.
                                  OR DER AND JUDGM ENT *
    Before HA RTZ, EBEL and T YM KOVICH, Circuit Judges.
          Defendant-Appellant Richard Joseph Leider appeals from the district
    court’s decision denying his motion to modify his sentence under 18 U.S.C.
    § 3582. 1 W e AFFIRM .
            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 ordered submitted without oral argument. 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    Order and Judgment is not binding precedent, except under the doctrines of law of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.
           W e GRANT Leider’s motion to proceed in forma pauperis. See 28 U.S.C.
    § 1915; see also United States v. Price, 
    438 F.3d 1005
    , 1007 (10th Cir.) (granting
    appellant’s motion to appeal in forma pauperis from denial of 18 U.S.C. § 3582
    motion), cert. denied, 
    126 S. Ct. 2365
          Leider pled guilty to seven counts of bank fraud, in violation of 18 U.S.C.
    1344. 2 The indictment to which Leider pled guilty alleged generally that, from
    1994 through 2002, Leider “developed and executed a scheme to defraud” three
    banks: U.S. Bank, Key Bank, and Zions Bank. The Indictment further alleged:
               2. As part of the scheme to defraud, [Leider] opened bank
          accounts in names not his own through the use of false identification
                3. As further part of the scheme, [Leider] made fraudulent
          deposits to those accounts through the use of checks drawn on
          nonexistent accounts or accounts with insufficient funds.
                 4. In execution of the scheme, [Leider], knowing that there
          were insufficient funds in the accounts he had opened, made
          withdrawals from those accounts by the fraudulent use of checks,
          bank withdrawals, automatic teller machines and debit cards, causing
          a loss to the banks in the follow ing amounts:
          U.S. Bank - $20,528
          Key Bank - $21,401
          Zions Bank - $24,845
              Section 1344 provides that
          [w]hoever knowingly executes, or attempts to execute, a scheme or
                   (1) to defraud a financial institution; or
                   (2) to obtain any of the moneys, funds, credits, assets,
                   securities, or other property owned by, or under the
                   custody or control of, a financial institution, by means of
                   false or fraudulent pretenses, representations, or promises;
          shall be fined no more that $1,000,000 or imprisoned not more than 30
          years, or both.
          At sentencing, although the district court determined that the applicable
    guideline range was thirty to thirty-seven months, the court instead imposed the
    twenty-four-month sentence to which the parties stipulated as part of the plea
    agreement. The district court imposed this sentence on April 5, 2005 and further
    ordered this federal sentence to run concurrently with a one-year state sentence
    that Leider was already serving at that time. The misdemeanor conviction
    underlying that state sentence was for passing a bad check in order to obtain
    $2,439.66 unlawfully from Zions Bank in July 2002, during the same time that
    Leider admitted executing the bank fraud scheme.
          Leider did not file a direct appeal. After completing his state sentence,
    Leider was transferred to federal custody in August 2005. There, Bureau of
    Prisons (“BOP”) officials calculated his release date, crediting his federal
    sentence with the time Leider had served in state custody after the imposition of
    his federal sentence. 3 W hen Leider realized the BOP w as not crediting his federal
    sentence for the time he served in state prison before his federal sentencing,
            The BOP did not initially credit Leider’s federal sentence with this period
    of state imprisonment. In his § 3582 motion, therefore, Leider asserted that the
    BOP was running his federal sentence consecutively rather than concurrently with
    his state sentence. The district court, in otherwise denying Leider’s § 3582
    motion, did note that the BOP had incorrectly calculated Leider’s federal sentence
    from August 2, 2005, the date he was transferred into federal custody, rather than
    from April 5, 2005, the date the district court imposed the federal sentence. The
    district court requested that the BOP change this to reflect that his federal
    sentence began to run from the date it w as imposed, April 5, 2005. In this
    manner, then, the federal sentence ran concurrently with the state sentence,
    beginning on the date that the district court imposed the federal sentence.
    Leider filed a 18 U.S.C. § 3582 4 motion asking the district court to modify his
    sentence. In that § 3582 motion, Leider asserted that U.S.S.G. § 5G1.3(b) 5
           Leider specifically rejected the district court’s attempt to construe his
    § 3582 motion as one made instead under 28 U.S.C. § 2255.
            Because the district court sentenced Leider in April 2005, the 2004
    sentencing Guidelines, effective in November 2004, apply unless doing so would
    result in an ex post facto violation. See U.S.S.G. § 1B1.11(a), (providing that
    generally district court must use guidelines in effect on date of sentencing), (b)(1)
    (providing that if applying the guidelines in effect at the time of sentencing would
    result in an ex post facto violation, then the district court should apply the
    guidelines in effect at the time the defendant committed the crime for w hich he is
    being sentenced). Leider has not asserted, and we cannot conclude, that applying
    the 2004 guidelines in this case would result in any ex post facto violation. W e,
    therefore, apply the 2004 Guidelines. That version of § 5G1.3 provided:
          (a) If the instant offense was committed w hile the defendant was
          serving a term of imprisonment (including w ork release, furlough, or
          escape status) or after sentencing for, but before commencing service
          of, such term of imprisonment, the sentence for the instant offense shall
          be imposed to run consecutively to the undischarged term of
          (b) If subsection (a) does not apply, and a term of imprisonment
          resulted from another offense that is relevant conduct to the instant
          offense of conviction under the provisions of subsection (a)(1), (a)(2),
          or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the basis for an
          increase in the offense level for the instant offense under Chapter Two
          (Offense Conduct) or Chapter Three (Adjustments), the sentence for the
          instant offense shall be imposed as follow s:
                 (1) the court shall adjust the sentence for any period of
                 imprisonment already served on the undischarged term of
                 imprisonment if the court determines that such period of
                 imprisonment will not be credited to the federal sentence
                 by the Bureau of Prisons; and
                 (2) the sentence for the instant offense shall be imposed to
    required that the district court credit against his federal sentence the entire time
    he served on his state conviction.
          The district court denied that motion. Reviewing the district court’s
    decision de novo, see United States v. Smartt, 
    129 F.3d 539
    , 540 (10th Cir. 1997),
    we affirm.
          “A district court does not have inherent authority to modify a previously
    imposed sentence.” Id. Rather, “[a] district court is authorized to modify a
    defendant’s sentence only in specified instances w here Congress has expressly
    granted the court jurisdiction to do so.” Price, 438 F.3d at 1007 (quotation,
    alteration omitted); see also Smartt, 129 F.3d at 541; United States v. Blackwell,
    81 F.3d 945
    , 947-48 (10th Cir. 1996).
          In this case, Leider specifically invoked 18 U.S.C. § 3582(c)(2). But that
    statutory provision permits a district court to modify a sentence only when “ the
    defendant . . . 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).” See also United States v.
                    run concurrently to the remainder of the undischarged term
                    of imprisonment.
          (c) (Policy Statement) In any other case involving an undischarged term
          of imprisonment, the sentence for the instant offense may be imposed
          to run concurrently, partially concurrently, or consecutively to the prior
          undischarged term of imprisonment to achieve a reasonable punishment
          for the instant offense.
    422 F.3d 1202
    , 1203 (10th Cir. 2005); United States v.
    337 F.3d 1170
    , 1173 (10th Cir. 2003). And Leider does not assert
    that that is the case here. 6
           Leider also invoked § 3582 generally. Section 3582(c)(1)(A) permits the
    district court to modify a sentence if the BOP’s Director moves for a sentence
    reduction due to “extraordinary and compelling reasons” or if the inmate, among
    other things, “is at least 70 years of age, has served 30 years in prison” and the
    BOP D irector has determined that “the defendant is not a danger to the safety of
    any other person or the community.” See also Smartt, 129 F.3d at 541. Again,
    that is not the case here. See id.
           Lastly, § 3582(c)(1)(B) provides that a district “court may modify an
    imposed term of imprisonment to the extent otherwise expressly permitted by
    statute or by Rule 35 of the Federal Rules of C riminal Procedure.” See also
    Smartt, 129 F.3d at 541. But Leider does not assert “that any of the requisite
    conditions for Rule 35 relief are present.” Id. Nor does it appear that he could
    make such an assertion under the facts of this case. Rule 35(a) permits a district
    court, “[w]ithin 7 days after sentencing,” to “correct a sentence that resulted from
           Even if there was an amendment that lowered the guidelines that were
    applicable to Leider, he would still not be entitled to a sentence modification
    under § 3582(c)(2) because the district court in this case did not apply the
    guidelines to calculate Leider’s sentence; the district court instead imposed the
    sentence to which Leider and the Government had stipulated in the plea
    agreement. See United States v. Trujeque, 
    100 F.3d 869
    , 870 (10th Cir. 1996).
    arithmetical, technical, or other clear error.” 7 But Leider asserted his § 3582
    motion well after that seven-day time frame. (R. doc. 1.) And Rule 35(b) permits
    the district court to reduce a defendant’s sentence in light of “substantial
    assistance” the inmate provided to the Government. Leider’s allegations do not
    implicate that provision, either.
          For these reasons, § 3582 does not apply to Leider’s circumstances. W e,
    therefore, AFFIRM the district court’s decision declining to modify Leider’s
    sentence under § 3582. See Herrera-Garcia, 422 F.3d at 1203; United States v.
    Torres-A quino, 
    334 F.3d 939
    , 941 (10th Cir. 2003).
                                           ENTERED FOR THE COURT
                                           David M . Ebel
                                           Circuit Judge
           Rule 36, Fed. R. Crim. P., would also permit the district court to correct a
    sentence for clerical error. But Leider does not allege a clerical error.