                                                           FILED
                                               United
                   UNITED STATES COURT OF APPEALS     States Court of Appeals
                                                       Tenth Circuit
                         FOR THE TENTH CIRCUIT
                       _________________________________        March 25, 2019

                                                              Elisabeth A. Shumaker
    UNITED STATES OF AMERICA,                                     Clerk of Court
          Plaintiff-Appellee,

    v.                                              No. 18-5096
                                          (D.C. No. 4:15-CR-00027-GKF-1)
    TAMEKA DENISE JOHNSON,                          (N.D. Okla.)

          Defendant-Appellant.
                     _________________________________

                          ORDER AND JUDGMENT *
                       _________________________________

Before MATHESON, MCKAY, and BACHARACH, Circuit Judges.
               _________________________________

         This appeal grew out of Ms. Tameka Johnson’s sentences in federal

and state courts. In federal court, Ms. Johnson moved for a nunc pro tunc

ruling that would retroactively make her federal sentence run concurrently

with her Texas and Oklahoma state sentences. The district court denied the

motion on the merits, and Ms. Johnson appeals. The district court was right


*
      We conclude that oral argument would not materially aid our
consideration of this appeal, so we have decided the appeal based on the
appeal briefs and the record on appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and Tenth Cir. R. 32.1(A).
to disallow relief, but it should have dismissed Ms. Johnson’s motion for

lack of jurisdiction rather than rule on the merits.

1.    Ms. Johnson seeks modification of her federal sentence to remedy
      an alleged delay in the start of her federal sentence.

      Ms. Johnson pleaded guilty in federal court to receiving stolen

government funds, and the court sentenced her in August 2016 to 47

months’ imprisonment. When imposing the federal sentence, the court

recognized that Ms. Johnson would be sentenced in Texas for another

crime and anticipated that the Texas court would run its sentence

concurrently with the federal sentence. But the federal court expressly

declined to order the federal sentence to run concurrently with the future

Texas sentence. 1

      In the Texas case, the court sentenced Ms. Johnson in October 2016

to 36 months’ imprisonment and ordered the sentence to run concurrently

with her federal sentence. She completed the Texas sentence on November

21, 2016, but she remained in Texas jails on other charges until October

2017. Though Ms. Johnson was in a Texas jail, the U.S. Marshals Service

lodged a detainer against her in July 2017. Despite the detainer, however,

Ms. Johnson did not enter federal custody when she completed all of her



1    In contrast, the court ordered the federal sentence to run concurrently
with Ms. Johnson’s anticipated sentence in Tulsa County, Oklahoma.

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Texas sentences. She was instead extradited to Oklahoma, where she stayed

in jail until her release in February 2018. Two months later (April 2018),

federal marshals arrested Ms. Johnson and she started serving her federal

sentence.




     Ms. Johnson contends that the U.S. Marshals Service should have

lodged the detainer by the time that she discharged her initial Texas

sentence (November 21, 2016) and that the delay in the detainer extended

her time of incarceration by almost two years. To remedy the alleged delay

in the detainer, Ms. Johnson seeks modification of her federal sentence to

state that it was to also run concurrently with the subsequent incarcerations

in Texas and Oklahoma (which ended in February 2018).

2.   The district court lacked jurisdiction to consider Ms. Johnson’s
     motion.

     Because the district court’s jurisdiction involves a question of law,

we engage in de novo review. United States v. Luna-Acosta, 715 F.3d 860,

864 (10th Cir. 2013). Applying de novo review, we start by considering

whether Congress has expressly granted jurisdiction to the district court to

modify Ms. Johnson’s sentence on the ground that she had asserted. United


                                      3
States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Without an express

grant of jurisdiction, the district court would lack jurisdiction to modify

the sentence. See United States v. Mendoza, 118 F.3d 707, 709 (10th Cir.

1997) (“A district court does not have inherent authority to modify a

previously imposed sentence; it may do so only pursuant to statutory

authorization.”).

      Congress has provided a source of jurisdiction in 18 U.S.C.

§ 3582(b), which permits modification of sentences under

           § 3582(c),

           Federal Rule of Criminal Procedure 35, and

           18 U.S.C. § 3742.

See United States v. Spaulding, 802 F.3d 1110, 1121 n.11 (10th Cir. 2015).

      Ms. Johnson failed to timely invoke Rule 35, and she did not allege

any circumstances that would support appellate relief under § 3742. Thus,

§ 3582(c) provided the only conceivable basis for modification of Ms.

Johnson’s sentence. This section allows modification: (1) upon motion by

the Bureau of Prisons, (2) upon a change in the sentencing guidelines, or

(3) upon statutory authorization (like that provided in 28 U.S.C. § 2241

and § 2255). See 18 U.S.C. § 3582(c)(1)(A), (c)(1)(B), (c)(2); Spaulding,

802 F.3d at 1121 n.12. None of these apply. The Bureau of Prisons has not

filed a motion, and the applicable sentencing guidelines have not changed.

                                      4
Nor has Ms. Johnson invoked § 2241 or § 2255. 2 To obtain relief, Ms.

Johnson instead relies on two opinions, the text of 18 U.S.C. § 3584, and

§ 5G1.3 of the United States Sentencing Guidelines.

      Ms. Johnson points to Barden v. Keohane, 921 F.2d 476 (3rd Cir.

1990), and Setser v. United States, 132 S. Ct. 1463 (2012). Her reliance on

these opinions is misguided.

      In Barden, the Third Circuit addressed whether the Bureau of Prisons

could issue a nunc pro tunc order to credit time in state incarceration

against a federal sentence. 921 F.2d at 480–81. But the Third Circuit did

not extend this authority to federal courts. And even if Barden was

applicable, we have never adopted its reasoning. See United States v.

Miller, 594 F.3d 1240, 1242 (10th Cir. 2010) (observing that we have

never adopted Barden).

      Ms. Johnson also misapplies Setser v. United States, 132 S. Ct. 1463

(2012). Setser recognized the authority of a federal court at an initial

sentencing to run a sentence concurrently with an anticipated sentence. 132

S. Ct. at 1468–70. But this opinion does not authorize a court to later




2
      Courts occasionally recharacterize pro se motions. See Castro v.
United States, 540 U.S. 375, 381–82 (2003). But a motion under 28 U.S.C.
§ 2255 motion would be untimely. See 28 U.S.C. § 2255 (f)(1)–(4). And a
habeas petition under 28 U.S.C. § 2241 would need to be filed in the
district where Ms. Johnson is confined (the District of Minnesota).
                                     5
modify a sentence by making it run concurrently with another sentence.

See id.

      Ms. Johnson relies not only on Barden and Setser but also on the text

of 18 U.S.C. § 3584. Section 3584 allows for sentences imposed at

different times to be made concurrent. But this section applies only if the

federal court orders the sentences to run concurrently. Here the federal

court didn’t order its sentence to run concurrently with any Texas

sentences; the federal court ordered only that its sentence run concurrently

with the anticipated sentence to be issued in Tulsa County, Oklahoma.

      Finally, Ms. Johnson invokes § 5G1.3 of the United States

Sentencing Guidelines. This guideline generally allows departures; it

doesn’t authorize retroactive modification of a sentence previously

imposed. See United States v. Tetty-Mensah, 665 F. App’x 687, 690 (10th

Cir. 2016) (unpublished) (“[T]he Sentencing Guidelines are not

jurisdiction-conferring statutes permitting [a] court [sic] to modify a

sentence.”).

                                    * * *

      Without statutory authority to modify Ms. Johnson’s sentence, the

district court lacked jurisdiction to rule on the merits and should have

dismissed the motion for lack of jurisdiction. See United States v. White,

765 F.3d 1240, 1250 (10th Cir. 2014) (holding that a motion to modify a

                                      6
sentence should have been dismissed for lack of jurisdiction, rather than

denied, when the district court lacked statutory authority to modify the

sentence). We therefore (1) vacate the district court’s denial of Ms.

Johnson’s motion and (2) remand the case to the district court with

instructions to dismiss the motion for lack of jurisdiction. We also grant

Ms. Johnson’s motion to supplement the record on appeal.


                                      Entered for the Court


                                      Robert E. Bacharach
                                      Circuit Judge




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