                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 15, 2018
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 17-1303
                                              (D.C. No. 1:15-CR-00221-RBJ-1)
 MICHAEL ALVARES FYKES,                                  (D. Colo.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Michael Alvares Fykes appeals from the district court’s denial of his

“Motion for Post-Sentencing Modification of Probation Report.” Fykes’s counsel



      *
        This order and judgment is not binding precedent except under the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.
has filed an Anders brief, 1 asserting he could find no meritorious basis for appeal

and simultaneously moving to withdraw as counsel. Because the district court

lacked jurisdiction to consider Fykes’s motion, this court remands the matter to

the district court with directions to vacate its denial of the motion and to, instead,

dismiss the motion for lack of jurisdiction.

      Fykes was convicted of being a felon in possession of a firearm and was

sentenced to sixty months’ imprisonment. This court affirmed Fykes’s conviction

and sentence. United States v. Fykes, 678 F. App’x 677, 690 (10th Cir. 2017)

(unpublished). Thereafter, Fykes filed the instant motion asking the district court

to excise from his PSR information indicating his involvement in sex trafficking.

Fykes asserted the objected-to information led the Bureau of Prisons to assign to

him a higher offense-severity classification. The district court denied the motion

in a brief minute entry. In that minute entry, the district court noted Fykes did

not dispute the accuracy of the information included in the PSR. Instead, Fykes

simply asserted the evidence was irrelevant to his conviction on a firearm charge.

The district court responded to Fykes’s request as follows:

      Because Mr. Fykes ultimately was not prosecuted for human
      trafficking, the Court excluded evidence concerning human
      trafficking from the trial. That does not mean that the information
      properly included in the Probation report should be deleted. The
      defendant has provided no authority either for requiring a rewriting
      of the Report to his benefit or for the Court’s interference with the
      BOP’s internal classification of Mr. Fykes for its purposes.

      1
          Anders v. California, 386 U.S. 738 (1967).

                                          -2-
Fykes appeals.

       This appeal is before the court on counsel’s Anders brief. Pursuant to

Anders, counsel may “request permission to withdraw where counsel

conscientiously examines a case and determines that any appeal would be wholly

frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

Counsel is required to submit an appellate brief “indicating any potential

appealable issues.” Id. Once notified of counsel’s brief, the defendant may then

submit additional arguments to this court. Id. We “must then conduct a full

examination of the record to determine whether defendant’s claims are wholly

frivolous.” Id. Fykes did not file a brief in response to his counsel’s Anders

brief. The government, likewise, declined to file a brief. Thus, our resolution of

the case is based on counsel’s Anders brief and this court’s independent review of

the record. That independent review demonstrates the district court lacked

jurisdiction to consider on the merits Fykes’s post-judgment motion to modify his

PSR.

       In counsel’s Anders brief, counsel asserts, relying on Fed. R. Crim. P. 32,

the district court “likely did have jurisdiction to consider and discretion to grant

Mr. Fykes’s post-sentencing motion to amend the PSR.” Fykes’s Opening Br. at

7. In support of this assertion, counsel relies entirely on this court’s unpublished

disposition in United States v. Grigsby, 630 F. App’x 838 (10th Cir. 2015). As

correctly noted by counsel, Grigsby appears to affirm on the merits a district

                                          -3-
court denial of a post-sentencing motion to amend the PSR. Id. at 841-42. Given

this, counsel argues “[t]hat this Court [in Grigsby] did not remand with

instructions to dismiss for lack of jurisdiction indicates that the district court here

likewise had jurisdiction to consider the merits of Mr. Fykes’s motion.” Fykes’s

Opening Br. at 8. 2

      Counsel’s legal arguments as to whether the district court had jurisdiction

to resolve Fykes’s motion are profoundly misplaced. To be clear, there is

absolutely no discussion in Grigsby as to whether the district court had

jurisdiction to resolve on the merits Grigsby’s post-sentencing motion to alter the

PSR. Grigsby, 630 F. App’x at 841-42. Instead, counsel asserts that the mere

affirmance by Grigsby of the district court order amounts to a sub silentio

determination that jurisdiction was proper. As the Supreme Court has made clear,

however, federal courts are “not bound by a prior exercise of jurisdiction in a case

where it was not questioned and it was passed sub silentio.” United States v. L.A.

Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952). In other words, only a case that




      2
       Counsel further notes as follows: “After extensive research, undersigned
counsel has been unable to find any authority indicating that Grigsby was wrongly
decided, or that the district court erred in denying Mr. Fykes’s motion.” Fykes’s
Opening Br. at 9. This is a surprising declaration given that, as described more
fully herein, there exists in this circuit a contrary precedent directly on point.
Furthermore, every circuit that has considered the issue appears to conclude Rule
32 does not provide a jurisdictional basis for a district court to resolve on the
merits post-sentencing motions to alter a PSR.

                                          -4-
recognizes and resolves a question of jurisdiction amounts to binding precedent.

See id.

      In any event, counsel is simply wrong in asserting there does not exist any

precedent indicating Grigsby was wrongly decided. In United States v. Warner,

23 F.3d 287 (10th Cir. 1994), this court specifically held the predecessor version

of Fed. R. Crim. P. 32 does not empower a district court to decide a post-

sentencing motion to amend a PSR. Id. at 290 (collecting cases from multiple

circuits for the proposition “that Rule 32(c)(3)(D), standing alone, cannot provide

a district court with jurisdiction to hear challenges to a presentence report once

sentence has been imposed”); United States v. Ballard, 512 F. App’x 152, 153 (3d

Cir. 2013) (“The District Court lacked jurisdiction to provide . . . relief under

Rule 32, however, because sentencing courts do not retain jurisdiction thereunder

to entertain challenges to the PSR after final judgment. See United States v.

Angiulo, 57 F.3d 38, 41 (1st Cir. 1995) (collecting cases); United States v.

Warner, 23 F.3d 287, 290 (10th Cir. 1994) (same).”). 3


      3
        Nor can it be asserted such jurisdiction would exist under the provisions of
28 U.S.C. § 2255. As Warner explained, district courts should be wary of
recharacterizing random motions as § 2255 proceedings because such an action
may prevent the filing of a future, more fully developed, request for collateral
relief. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). This is
particularly true given that a review of the docket demonstrates Fykes has now
filed a § 2255 motion. See id. (“[T]he subsequent § 2255 motion also shows his
intent that the previous Rule 32 motion not be construed as a § 2255 motion
because if it was so construed, the latter petition raising new issues attacking the
sentence would be subject to challenge as successive.”).

                                          -5-
      As this court’s published decision in Warner makes clear, Rule 32 does not

provide a jurisdictional basis for a district court to resolve on the merits a post-

sentencing motion to amend the PSR. Accordingly, this matter is remanded to

the district court with directions to vacate its judgment denying Fykes’s motion

and to, instead, dismiss that motion for lack of jurisdiction. Given this

disposition, counsel’s Anders-based motion to withdraw is denied as moot.

                                            Entered for the Court



                                            Michael R. Murphy
                                            Circuit Judge




                                          -6-
