          Case: 15-14248   Date Filed: 07/20/2016   Page: 1 of 6


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-14248
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:10-cr-14026-JEM-1



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,


                                 versus


MIGUEL ANGEL PINEDA-NUNEZ,

                                                       Defendant - Appellant.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                            (July 20, 2016)
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Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

       Miguel Pineda-Nunez, proceeding pro se, appeals the district court’s denial

of his “Motion for a Request for a Nunc Pro Tunc Designation of a State Institution

and/or Motion for Judicial Recommendation for a Nunc Pro Tunc Designation of a

State Institution,” which requested that the district court recommend that the

Bureau of Prisons (“BOP”) designate a Florida state prison as the place of

confinement for his federal sentence.1 Because the district court lacked

jurisdiction to consider Pineda-Nunez’s motion, we vacate and remand with

instructions to dismiss for lack of jurisdiction.

                                                 I.

       Pineda-Nunez was convicted of illegal re-entry following deportation

subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C.

§ 1326(a). The district court sentenced him to 36 months’ imprisonment for the

immigration conviction, to be served consecutive to an undischarged term of

imprisonment for a state cocaine-trafficking conviction. Pineda-Nunez did not

appeal his sentence. Nearly four years later, while he was serving his state term of

imprisonment, he filed the instant motion. In the motion, Pineda-Nunez asserted


       1
         The designation of a state facility as an inmate’s place of incarceration has the effect of
causing federal and state sentences to run concurrently. See BOP Program Statement
5160.05(9)(a).


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that his state and federal charges were related offenses and that he therefore was a

suitable candidate for “designation of an appropriate state institution for service of

a ‘concurrent’ federal sentence.” Def.’s Mot. at 3 (Doc. 36). 2 The district court

summarily denied the motion. This is Pineda-Nunez’s appeal.

                                                   II.

       In his pro se motion, Pineda-Nunez appeared to ask the district court to

make the sentence it previously imposed run concurrently with his state sentence

so that all of his time would be served in state prison. His motion was made

pursuant to several statutory provisions, none of which authorized the district court

to grant the relief he sought.3

       After reviewing Pineda-Nunez’s motion, we think it most appropriate to

construe it as a request for sentence modification under 18 U.S.C. § 3582(c). See

Castro v. United States, 540 U.S. 375, 381 (2003) (“Federal courts sometimes will

ignore the legal label that a pro se litigant attaches to a motion and recharacterize

the motion in order to place it within a different legal category.”). The judgment in

Pineda-Nunez’s federal criminal case specified that his sentence was to run

consecutive to the undischarged term of imprisonment for his state drug trafficking

       2
           “Doc.” refers to the docket entry in the district court record in this case.
       3
          Pineda-Nunez’s motion referenced 18 U.S.C. §§ 3621(b), 3624(c), and 3584(a).
Sections 3621(b) and 3624(c) concern the authority of the BOP, not the district court. Section
3584(a) grants a district court discretion to decide whether a defendant’s sentences are to run
consecutively or concurrently, but it does not address retroactively making that determination
after a defendant has already been sentenced.


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conviction. Thus, by asking the district court to recommend to the BOP that he

serve his sentence in a state prison (so that his state and federal sentences run

concurrently), Pineda-Nunez necessarily was asking the court to modify the term

of his federal sentence from one consecutive to his state sentence to one concurrent

with his state sentence. Having decided that the proper construction of Pineda-

Nunez’s motion is one for sentence modification pursuant to § 3582(c), we next

consider whether the district court had subject matter jurisdiction to address the

merits of the motion. We conclude it did not.

                                          III.

       “Whether a court has jurisdiction over a particular case is a question of law

subject to plenary review.” United States v. Maduno, 40 F.3d 1212, 1215 (11th

Cir. 1994). A party may raise jurisdiction at any time during the pendency of the

proceedings. United States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir.

1998). “When the lower court lacks jurisdiction, we have jurisdiction on appeal

for the sole purpose of correcting the lower court’s error in entertaining the suit.”

Boyd v. Homes of Legend, Inc., 188 F.3d 1294, 1298 (11th Cir. 1999). “We review

de novo questions concerning the jurisdiction of the district court.” United States v.

Oliver, 148 F.3d 1274, 1275 (11th Cir. 1998).

      “The authority of a district court to modify an imprisonment sentence is

narrowly limited by statute.” United States v. Phillips, 597 F.3d 1190, 1194-95



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(11th Cir. 2010). Under 18 U.S.C. § 3582(c), a district court may modify a

sentence only under three circumstances: (1) the BOP files a motion and certain

other conditions are met; (2) a modification is expressly permitted by a statute or

Rule 35 of the Federal Rules of Criminal Procedure; or (3) the defendant was

sentenced based on a Sentencing Guidelines range that was subsequently lowered

by the Sentencing Commission. See 18 U.S.C. § 3582(c); Phillips, 597 F.3d at

1195.

        Pineda-Nunez’s motion does not fall within any of the categories of

authorized § 3582(c) motions. The BOP has not filed a motion to modify Pineda-

Nunez’s sentence. His motion also does not appear to be permitted by statute or

the Federal Rules of Criminal Procedure.4 Nor does Pineda-Nunez contend that

his sentence was based on a Sentencing Guidelines range that subsequently was

lowered. Consequently, construing Pineda-Nunez’s motion as having requested

modification of his sentence under § 3582(c), we can identify no statute or rule

affording the district court jurisdiction to modify his sentence. See United States v.

Anderson, 772 F.3d 662, 668 (11th Cir. 2014) (suggesting the district court’s

authority to modify a petitioner’s sentence based on one of the three circumstances

outlined in § 3582(c) is jurisdictional).
        4
          Rule 35 of the Federal Rules of Criminal Procedure permits a district court to correct,
within 14 days after sentencing, a sentence that resulted from arithmetical, technical, or other
clear error. Fed. R. Crim. P. 35(a). Pineda-Nunez’s motion identified no sentencing error, thus
Rule 35(a) does not apply. Even if it had, Pineda-Nunez filed his motion after the expiration of
the 14 day deadline. In either case, the district court had no authority to modify his sentence.


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                                        IV.

      The district court lacked jurisdiction to entertain Pineda-Nunez’s motion.

We therefore vacate and remand with instructions to dismiss for lack of

jurisdiction.

      VACATED AND REMANDED WITH INSTRUCTIONS.




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