                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     August 25, 2006
                           FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                       Clerk of Court



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

               Plaintiff-Appellee,

    v.                                                  No. 05-6164
                                                  (D.C. No. CR-02-211-M )
    THOM AS BURL CAIN, a/k/a                            (W .D. Okla.)
    “Chameleon,”

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, O’BRIEN, and M cCO NNELL, Circuit Judges.


         Defendant Thomas Burl Cain appeals from the amended judgment entered

against him on M ay 4, 2005. The amended judgment reflects a new sentence

imposed after the district court conducted a resentencing hearing on April 29,

2005. M r. Cain did not file an appeal from his original judgment and sentence




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
entered on November 3, 2004. W e have an obligation to independently determine

whether the district court had jurisdiction before we can proceed to the merits of

an appeal. See United States v. Green, 405 F.3d 1180, 1184 (10th Cir. 2005).

W e review de novo the district court’s decision that it had jurisdiction to

resentence M r. Cain. United States v. M endoza, 118 F.3d 707, 709 (10th Cir.

1997). W e exercise jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291. Because we conclude that the district court lacked

jurisdiction to resentence M r. Cain, we remand to the district court with

instructions to vacate the M ay 4, 2005 amended judgment, which is void for lack

of jurisdiction.

                                           I

      A grand jury named M r. Cain in a number of counts in a Superseding

Indictment charging various drug and firearms offenses. M r. Cain pled guilty to

Count 2 of the Superseding Indictment, which charged him with being an

unlawful user of a controlled substance in possession of at least 17 firearms and

600 rounds of ammunition in violation of 18 U.S.C. § 922(g)(3). The district

court accepted M r. Cain’s plea after a hearing, and referred the case to a

probation officer for a Presentence Report (PSR ) to be prepared. The probation

officer prepared the PSR using the 2002 version of the United States Sentencing

Guidelines (“the guidelines”) and determined that the applicable guideline range

was 324-405 months. The statutory maximum sentence for Count 2 was

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120 months. Because the statutory maximum sentence was less than the minimum

of the applicable guideline range, the probation officer was required to assign the

statutory maximum as the guidelines sentence. See U.S. Sentencing Guidelines

M anual § 5G1.1(a).

      At the conclusion of the sentencing hearing on October 29, 2004, the

district court sentenced M r. Cain to the guidelines sentence of 120 months.

In light of the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296

(2004), and the pending decision in United States v. Booker, 543 U.S. 220 (2005),

the district court also announced two alternative sentences: (1) 120 months if the

guidelines should be found in Booker to be unconstitutional; and (2) 30 months if

only the upward enhancements should be found in Booker to be unconstitutional.

      The judgment reflecting M r. Cain’s 120-month sentence was entered on

November 3, 2004. M r. Cain did not appeal from the judgment. On February 28,

2005, after the Booker decision was issued (and long after the appeal time had

run), M r. Cain filed a pro se “M otion for Order Nunc Pro Tunc Amending

Judgment,” requesting that the district court amend the judgment to impose the

second alternative sentence of 30 months. The district court entered an order

denying the motion, but sua sponte set the matter for resentencing. The district

court stated that, “[i]n light of Booker, the Court finds that simply amending

defendant’s judgment and imposing one of the alternative sentences is not

appropriate but that the appropriate procedure is to re-sentence defendant.”

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R., Doc. 148. The district court cited no basis for its jurisdiction to resentence

M r. Cain.

      The government then filed a motion for reconsideration, arguing that the

district court had no jurisdiction to resentence M r. Cain because his conviction

and sentence became final on November 16, 2004, when the time for filing an

appeal from the judgment expired. The district court denied the motion for

reconsideration, stating:

      W hile the court recognizes that the government’s contention would
      be correct if defendant had been sentenced to a single sentence with
      no alternative sentences, the Court finds that based upon the actual
      sentence the Court imposed, which consisted of three alternative
      sentences, all contingent upon the Supreme Court’s ruling in Booker,
      defendant’s sentence did not become final on November 16, 2004.
      Further, because none of the alternative sentences the Court imposed
      exactly reflects the Supreme Court’s holding in Booker, the C ourt
      finds that it would be inappropriate to impose any of the alternative
      sentences. Consequently, the Court finds that currently defendant is
      not subject to any final and binding sentence.

Id., Doc. 151, at 2.

      At the resentencing hearing on April 29, 2005, the district court noted that

it was using the sentencing guideline range from M r. Cain’s initial sentencing as

the advisory guideline range. The district court then sentenced M r. Cain to

120 months’ imprisonment. M r. Cain timely appealed from the judgment and

sentence entered on M ay 4, 2005.




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                                         II

      A district court has extremely limited authority to modify a sentence once it

is imposed. “A district court is authorized to modify a Defendant’s sentence only

in specified instances where Congress has expressly granted the court jurisdiction

to do so.” United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996)

(quotation omitted). The statutory authority for modifying a sentence comes from

18 U.S.C. § 3582(c), which identifies three situations that permit a sentence to be

modified: “upon motion of the Director of the Bureau of Prisons,”

§ 3582(c)(1)(A); “to the extent otherwise expressly permitted by statute or by

Rule 35 of the Federal Rules of Criminal Procedure,” § 3582(c)(1)(B); and, in

cases where the applicable sentencing range “has subsequently been lowered

by the Sentencing Commission,” § 3582(c)(2). Otherwise, a defendant must

appeal from the sentence or succeed on a petition under 28 U.S.C. § 2255 to

obtain relief.

      None of the situations in § 3582(c) are applicable to M r. Cain’s case.

Subsection (c)(1)(A) does not apply because there was no motion by the Director

of the Bureau of Prisons. Subsection (c)(2) does not apply because the applicable

sentencing range was not lowered by the Sentencing Commission. In United

States v. Price, 438 F.3d 1005 (10th Cir.), cert. denied, 126 S. Ct. 2365 (2006),

we rejected an argument that the Booker decision, which severed the portions of

the sentencing guidelines that made them mandatory, indirectly lowered the

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sentencing range and gave the district court authority to reduce a defendant’s

sentence under § 3582(c)(2). W e explained that “even if Booker could be read to

be an implicit lowering of [defendant’s] sentencing range, § 3582(c)(2) only

expressly allows a reduction where the Sentencing Commission, not the Supreme

Court, has lowered the range.” Price, 438 F.3d at 1007. The Supreme Court’s

decision in Booker, therefore, did not give the district court authority to

resentence M r. Cain.

      Finally, § 3582(c)(1)(B), which allows modification pursuant to Rule 35 of

the Federal Rules of Criminal Procedure, does not provide a basis for the district

court’s resentencing. Rule 35 permits a district court to correct or reduce a

defendant’s sentence in two specified instances. First, “[w]ithin 7 days after

sentencing, the court may correct a sentence that resulted from arithmetical,

technical, or other clear error.” Fed. R. Crim. P. 35(a). Second, a court may,

upon the government’s motion within one year of sentencing, reduce a sentence if

the defendant provided “substantial assistance in investigating or prosecuting

another person.” Id., Rule 35(b)(1)(A). This case presents neither of those

situations.

                                          III

      Because the district court did not have statutory authority to modify

defendant’s sentence, it had no jurisdiction to resentence M r. Cain. See United

States v. Blackwell, 81 F.3d 945, 949 (10th Cir. 1996) (holding that a district

                                          -6-
court does not have inherent jurisdiction to resentence a defendant). In response

to the government’s motion seeking reconsideration of the district court’s

decision to conduct a resentencing hearing, the district court concluded that it

retained jurisdiction to resentence M r. Cain because it had imposed three

alternative sentences, which were all contingent on Booker, rather than one final,

binding sentence.

      The district court’s response to the government’s motion for

reconsideration, however, does not accurately reflect the circumstances of this

case. The district court did not set out three alternative sentences that were all

contingent on Booker. Rather, the district court imposed a sentence of

120 months pursuant to the guidelines, which it was obligated to follow at that

point in time. The judgment states:

      The defendant is hereby committed to the custody of the United
      States Bureau of Prisons to be imprisoned for a total term of 120
      months in accordance with the U.S. Sentencing Guidelines. The
      Court finds that, if the U.S. Sentencing Guidelines are later found to
      be unconstitutional in their entirety, the defendant is alternatively
      sentenced to 120 months, and further, if only the upward
      enhancements of the U.S. Sentencing Guidelines are later found to be
      unconstitutional, the defendant is alternatively sentenced to a term of
      30 months.

Id., Doc. 143, at 2 (emphasis added).

      The guidelines sentence that was embodied in the judgment entered on

November 3, 2004, was a final, appealable sentence that was binding on M r. Cain.

Cf. United States v. Cage, 451 F.3d 585, 589 (10th Cir. 2006) (explaining that

                                          -7-
government did not have statutory authority to appeal from alternative sentence

because it w as not a “final sentence” within the meaning of 18 U.S.C. § 3742).

Because M r. Cain did not appeal from the November 3 judgment imposing his

120-month guidelines sentence and because none of the § 3582 conditions are

present, the district court was divested of all jurisdiction on November 16, 2004,

when the time for appeal expired. See United States v. M artin, 913 F.2d 1172,

1175-76 (6th Cir. 1990). The district court therefore lacked jurisdiction to

resentence defendant. Consequently, the M ay 4, 2005 amended judgment must be

vacated.

      W e note that district courts may impose alternative sentences, although it is

a disfavored practice. See Cage, 451 F.3d at 589-90. In Cage, the district court

imposed a previously announced alternative sentence upon occurrence of the

stated contingency. Id. Cage does not, however, confer resentencing authority.

See id. at 590 (explaining that order imposing alternative sentence was not a

“new sentence, but rather a clarification of the original sentence.”). Here, unlike

in Cage, the district court did not choose to impose a previously announced

alternative sentence. To the contrary, the district court stated that “imposing one

of the alternative sentences was not appropriate.” R., Doc. 148. Instead, the

court conducted a resentencing hearing and imposed a new sentence.

Consequently, Cage is completely distinguishable and offers no authority for the




                                         -8-
resentencing that occurred in this case, where the district court expressly stated it

was not imposing one of the two alternative sentences.

      Accordingly, this case is REM ANDED to the district court with

instructions to VACATE its void amended judgment entered on M ay 4, 2005,

allowing the judgment of November 3, 2004 to stand as entered. 1

                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Chief Circuit Judge




1
      To the extent that M r. Cain’s appeal challenges his original sentence from
the November 3, 2004 judgment, we lack jurisdiction to review that sentence
because M r. Cain failed to file a timely notice of appeal. See United States v.
Smith, 182 F.3d 733, 734 (10th Cir. 1999) (explaining that “[t]his court cannot
exercise jurisdiction absent a timely notice of appeal.”).

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