                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       June 25, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,

 v.
                                                        No. 06-1489
                                                 D.C. No. 95-cv-00271-DBS
 K EV IN D IO N SM ITH ,
                                                         (D . Colo.)
          Defendant-Appellant.




                                OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      In 1995, Kevin Dion Smith pled guilty to various federal charges arising

from his participation in a conspiracy to distribute drugs through “.357 Crips”

gang members, a conspiracy in which M r. Smith admitted he personally sold in

excess of 5 kilograms of crack cocaine. As part of his plea agreement with the

government, M r. Smith agreed, among other things, to enter an unconditional plea

to a separate state first-degree murder charge; that his state sentence would run

concurrently to his federal sentence; that he would stipulate to a “career offender”


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
criminal history designation; and that, should the court determine that any

sentences less than life imprisonment without parole to be appropriate, either

party, he or the government, could withdraw from the plea agreement. In late

1995, M r. Smith was indeed sentenced to life imprisonment.

      A little over 10 years later, on July 17, 2006, M r. Smith filed a “motion to

correct sentence and a petition for writ of mandamus.” In this pleading, M r.

Smith, proceeding pro se, argued that his sentence of life imprisonment was

unlawful, extracted by means of fraud, and violative of United States v. Booker,

543 U.S. 220 (2005). The district court rejected M r. Smith’s argument on the

merits, noting that he signed his plea agreement “three separate times in three

different versions,” and that the agreement “contains multiple admissions that

would make the sentence imposed appropriate. That is true of each version.

Furthermore, with his signature, Defendant agreed that a sentence of life

imprisonment was appropriate under these circumstances.” D. Ct. Order of

Oct. 23, 2006, at 2.

      Before reaching the merits of this or any appeal, we must of course assure

ourselves that we have jurisdiction to hear it. United States v. Blackwell, 81 F.3d

945, 947 (10th Cir. 1996) (“W e review de novo the district court’s legal

determination that it possessed jurisdiction to modify Defendant’s sentence.”); see

also W right, M iller & Cooper, Federal Practice and Procedure: Jurisdiction 2d

§ 3903, p. 135 (1992) (“The rule is well established that if a district court lacked

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subject matter jurisdiction, the court of appeals is obliged to notice the lack . . .

and lacks jurisdiction to consider the merits of the case.”). In Blackwell, we

noted that Congress, in 18 U.S.C. § 3582, authorized district courts to modify

sentences such as M r. Smith’s only in limited circumstances, specifically:

       (1) in certain circumstances “upon motion of the Director of the
       Bureau of Prisons”; (2) “to the extent otherwise expressly permitted
       by statute or by Rule 35 of the Federal Rules of Criminal Procedure”;
       or (3) “upon motion of the defendant or the Director of the Bureau of
       Prisons,” or on the court’s own motion in cases w here the applicable
       sentencing range “has subsequently been lowered by the Sentencing
       Commission.”

Blackwell, 81 F.3d at 947-48 (quoting 18 U.S.C. § 3582(c)(1)(A), (c)(1)(B),

(c)(2)).

       Because the Bureau of Prisons is not involved in this matter and the

applicable sentencing range has not been low ered, the first and third options are

unavailable and, to invoke federal jurisdiction, M r. Smith must proceed under a

specific statute or Rule 35. Tow ard this end, and construing his pro se filings as

liberally as possible, Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200

(2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007), there are three

possible avenues M r. Smith might employ to bring his motion – Federal Rule of

Criminal Procedure 35, 18 U.S.C. § 3742, or 28 U.S.C. § 2255. See United

States v. Speelman, 431 F.3d 1226, 1229-30 (9th Cir. 2005) (“Under federal law,

a defendant can seek correction of an allegedly illegal sentence by means of three

discrete procedures. Pursuant to Rule 35 of the Federal Rules of Criminal

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Procedure, . . .18 U.S.C. § 3742[, or a] defendant convicted in federal court may

also collaterally attack a sentence pursuant to 28 U.S.C. § 2255 . . . .” (footnote

omitted)); see also United States v. Lussier, 104 F.3d 32, 37 (2d Cir. 1997). W e

find none availing.

      First, Rule 35 is inapplicable because it allows for the correction of a

sentence only within 7 days. In his filings, M r. Smith responds that he wishes to

rely on a prior version of Rule 35 which “permit[ted] correction at any time of an

illegal sentence.” Hill v. United States, 368 U.S. 424, 430 (1962). But Rule 35

was amended in 1984 by Pub. L. 98-473, such that the language M r. Smith cites

has no bearing on offenses committed (as here) after N ovember 1, 1987. See Fed.

R. Crim. P. 35 note.

      Second, Section 3742 of 18 U.S.C. provides that “[a] defendant may file a

notice of appeal in the district court for review of an otherwise final sentence if

the sentence . . . was imposed in violation of law”; however, as in all cases, “‘[a]

timely notice of appeal is both mandatory and jurisdictional,’” In re Special

Grand Jury 89-2, 450 F.3d 1159, 1166 (10th Cir. 2006) (quoting United States v.

Espinosa-Talamantes, 319 F.3d 1245 (10th Cir. 2003)); Bowles v. Russell, 551

U.S. ___, 127 S. Ct. 2360, 2363 (2007) (“This Court has long held that the taking

of an appeal within the prescribed time is mandatory and jurisdictional.” (internal

quotation omitted)), and the period in which a notice of appeal could have been



                                          -4-
timely filed in this matter expired years ago, id. (noting that “Fed. R. App. P.

4(b)(1)(A ) . . . requires a [criminal] defendant to file the notice [of appeal] within

10 days after entry of the judgment or order being appealed.”).

      Finally, much the same problem attends an effort to seek relief under 28

U.S.C. § 2255, as its one-year statute of limitations has long since run. 1

      Finding ourselves without jurisdiction to address the merits of M r. Smith’s

claims, we reverse the district court’s decision on the merits and remand this case

for dismissal for lack of jurisdiction. W e deny, as did the district court, M r.

Smith’s motion to proceed in form a pauperis.

                                         ENTERED FOR THE COURT



                                         Neil M . Gorsuch
                                         Circuit Judge




      1
         Neither can M r. Smith’s statute of limitations period begin with the date
of the decision in Booker, see 28 U.S.C. § 2255 (“The limitation period shall run
from the latest of . . . (3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review”),
because “Booker does not apply retroactively to criminal cases that became final
before its effective date of January 12, 2005.” United States v. Bellamy, 411 F.3d
1182, 1184 (10th Cir. 2005).

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