                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 23, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 08-1234
 v.                                            (D.C. No. 01-CR-00214-WYD-5)
                                                          (D. Colo.)
 THEOLIAN LLOYD,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges. **


      Defendant-Appellant Theolian Lloyd appeals from the district court’s

denial of his motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)

and Amendment 706 to the Sentencing Guidelines. See R. Doc. 3595. In April

2004, Mr. Lloyd was convicted of one count of conspiracy to distribute fifty

grams or more of crack cocaine, and two counts of distributing crack cocaine. R.


      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Doc. 3422, attachment 1 (judgment); see also 18 U.S.C. § 2; 21 U.S.C. §§

841(a)(1), (b)(1)(A)(iii), (b)(1)(B)(iii), 846. Because of Mr. Lloyd’s previous

felony drug conviction, he was sentenced to the statutory minimum term of 240

months’ imprisonment and ten years’ supervised release under 21 U.S.C. §

841(b)(1)(A)(iii). R. Doc. 3422, attachment 1 (judgment). This court affirmed

the conviction and sentence. United States v. Small, 423 F.3d 1164 (10th Cir.

2005).

         In March 2008, Mr. Lloyd filed a motion for appointment of counsel and

modification of sentence pursuant to 18 U.S.C. § 3582(c)(2). R. Doc. 3568. The

district court appointed Mr. John H. Schlie as Mr. Lloyd’s representative. R.

Doc. 3570. Subsequently, Mr. Schlie and the government notified the court that

Mr. Lloyd was ineligible for a sentence reduction because he had received the

mandatory minimum sentence required by statute. R. Doc. 3587; R. Doc. 3592.

Citing a pending ineffective assistance of counsel claim filed by Mr. Lloyd

regarding Mr. Schlie, Mr. Lloyd wrote to the district court on May 6, 2008,

requesting appointment of substitute counsel. On May 14, 2008, the district court

struck Mr. Lloyd’s subsequent motion to appoint counsel. On May 20, 2008, the

district court denied Mr. Lloyd’s § 3582(c)(2) motion. R. Doc. 3595.

         After again moving the court for appointment of counsel on June 17, 2008,

Mr. Lloyd filed an undated pro se notice of appeal on June 27, 2008. R. Doc.

3609. Attached was a certificate of service that indicated the appeal was served

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on “this ___ day of June, 2008.” Id. After Mr. Schlie’s motion for leave to

withdraw was granted, Mr. Robert T. Fishman was appointed as counsel on July

8, 2008. R. Doc. 3616. Mr. Fishman has filed a brief (and served it on Mr.

Lloyd) where he seeks to withdraw pursuant to Anders v. California, 386 U.S.

738, 744 (1967). Mr. Lloyd has filed a brief in opposition. We agree that there

are no potentially meritorious issues on appeal because (1) the appeal was

untimely and (2) the sentence in this case was not eligible for sentence reduction.

      Under Federal Rule of Appellate Procedure 4(b)(1)(A), a defendant’s notice

of appeal must be filed within ten days of entry of the order being appealed. Fed.

R. App. P. 4(b)(1)(A); see also United States v. Espinosa-Talamantes, 319 F.3d

1245, 1246 (10th Cir. 2003) (holding that ten-day rule applies to motion to

modify sentence pursuant to § 3582(c)(2)). Final order and judgment in this case

was entered on May 20, 2008. R. Doc. 3595. Therefore, because Mr. Lloyd did

not mail his notice of appeal until sometime in June 2008, the appeal is untimely.

See also United States v. Ceballos-Martinez, 371 F.3d 713, 715-18 (10th Cir.

2004) (declining to apply the “prisoner mailbox rule” under Fed. R. App. P.

4(c)(1) where appellant failed to include a declaration in compliance with 28

U.S.C. § 1746 or a notarized statement indicating the date of deposit with federal

prison officials). We note that, under Federal Rule of Appellate Procedure

4(b)(4), a district court may, before or after the expiration of the ten-day period,

extend the time to file a notice of appeal by up to thirty days upon a finding of

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“excusable neglect or good cause.”

      Although non-compliance with the time limit in Rule 4(b)(1)(A) is not

jurisdictional, see United States v. Garduno, 506 F.3d 1287, 1290-91, 1292 n.5

(10th Cir. 2007), the government has objected on this basis. The government also

argues that no purpose would be served by remanding this appeal for a

determination on “excusable neglect or good cause” because the district court

lacked jurisdiction to modify Mr. Lloyd’s sentence. A district court has limited

authority to modify a previously imposed sentence and must do so pursuant to

statutory authority. United States v. Mendoza, 118 F.3d 707, 709 (10th Cir.

1997); see also United States v. Blackwell, 81 F.3d 945, 947-49 (10th Cir. 1996).

Here, the sentence was not “based on a sentencing range that has subsequently

been lowered” as required by § 3582(c)(2). Although Amendment 706 may

appear to apply because the offense involved crack cocaine, Mr. Lloyd was

sentenced to 240 months’ imprisonment based on a statutory minimum required

under 21 U.S.C. § 841(b)(1)(A)(iii). Such a sentence rendered the district court

without jurisdiction to consider Mr. Lloyd’s § 3582(c)(2) motion. See U.S.S.G. §

1B1.10, cmt.1(A); United States v. Lagunas, No. 08-1228, 2009 WL 213159, at

*2 (10th Cir. Jan. 30, 2009); United States v. Smartt, 129 F.3d 539, 542-43 (10th

Cir. 1997).

      We GRANT counsel’s motion to withdraw and DISMISS Mr. Lloyd’s

appeal. We construe Mr. Lloyd’s “Rebuttal” brief as an untimely reply brief and

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GRANT him leave to file it.

                              Entered for the Court


                              Paul J. Kelly, Jr.
                              Circuit Judge




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