                                                                             F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              JAN 24 2005
                                TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 04-6197
          v.                                           (W. D. of Okla.)
 PEIRRI B. LEONARD, also known as                  (D.C. No. CR-01-107-R)
 Larry Smith,

               Defendant-Appellant.


                           ORDER AND JUDGMENT            *




Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.            **




      Defendant-Appellant Peirri B. Leonard files this appeal, his fourth in this

court, asking us to review the district court’s denial of his motion to review his

sentence. Finding that we lack jurisdiction, we dismiss the appeal.




      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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.
                                I. BACKGROUND

       Leonard pleaded guilty to 20 counts of making, uttering, and possessing

counterfeit securities in violation of 18 U.S.C. § 513(a) (2000). At sentencing,

the district court departed upward one criminal history category based on

Leonard’s long history of prior convictions. Leonard appealed his enhanced

sentence, and we affirmed.   United States v. Leonard , No. 01-6398, 2002 WL

31516890 (10th Cir. Nov. 13, 2002),     cert denied , 537 U.S. 1240 (2003). Leonard

then appealed the district court’s denial of his 28 U.S.C. § 2255 motion based on

ineffective assistance of counsel, and we denied Leonard a certificate of

appealability.   United States v. Leonard , No. 03-6234, 2003 WL 22977654 (10th

Cir. Dec. 19, 2003). Leonard next filed a motion for authorization to file a

second or successive § 2255 motion, alleging that his sentence was improperly

enhanced under the sentencing guidelines. We denied Leonard’s motion.

Leonard v. United States , 383 F.3d 1146 (10th Cir. 2004). Finally, Leonard filed

a motion in the district court for review of his sentence under 18 U.S.C. §§

3742(a) (2000) and 3582(b) (2000). On May 27, 2004, the district court denied

the motion, and this appeal followed.




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                                       II. ANALYSIS

       By its terms, § 3742(a) does not grant jurisdiction to a district court to

review a final sentence.    1
                                See United States v. Auman   , 8 F.3d 1268, 1271 (8th Cir.

1993). This section merely permits a defendant to file a notice of appeal in the

district court for review of a final sentence. Once a notice of appeal has been

filed, the district court’s only role is to certify the record to the court of appeals.

18 U.S.C. § 3742(d).    2
                            Similarly, § 3582(b) does not grant jurisdiction to a district




       1
           Section 3742(a) provides in pertinent part:

       (a) Appeal by a defendant.–A defendant may file a notice of appeal in the
       district court for review of an otherwise final sentence if the sentence–

               (1) was imposed in violation of law;

               (2) was imposed as a result of an incorrect application of the
               sentencing guidelines; . . .

       2
           Section 3742(d) provides:

       (d) Record on review.–If a notice of appeal is filed in the district court
       pursuant to subsection (a) or (b), the clerk shall certify to the court of
       appeals–

               (1) that portion of the record in the case that is designated as
               pertinent by either of the parties;

               (2) the presentence report; and

               (3) the information submitted during the sentencing proceeding.


                                              -3-
court to review a sentence. This section merely defines “final judgment.”     3
                                                                                  As the

Eighth Circuit has noted, § 3582(b) “does not grant jurisdiction to a district court

to do anything, let alone correct an illegal sentence.”   Auman , 8 F.3d at 1271.

The district court therefore did not have jurisdiction to consider the merits of

Leonard’s motion for review of sentence under § 3742(a) or § 3582(b). It is well

settled that “[a]n appellate federal court must satisfy itself not only of its own

jurisdiction, but also of that of the lower courts in a cause under review.”

Mitchell v. Maurer , 293 U.S. 237, 244 (1934). Thus, because the district court

did not have jurisdiction to consider Leonard’s motion, we likewise have no

jurisdiction to entertain this appeal.

       Nevertheless, Leonard urges us to treat his motion as a properly filed notice

of appeal under § 3742(a). Although we construe pro se pleadings liberally,

Ledbetter v. City of Topeka     , 318 F.3d 1183, 1187 (10th Cir. 2003), the



       3
           Section 3582(b) provides in pertinent part:

       (b) Effect of finality of judgment.–Notwithstanding the fact that a
       sentence to imprisonment can subsequently be–

                                           * * *

               (2) corrected pursuant to the provisions of rule 35 of the Federal
               Rules of Criminal Procedure and section 3742; . . .

       a judgment of conviction that includes a sentence constitutes a final
       judgment for all other purposes.

                                             -4-
circumstances of this case do not justify such treatment. Leonard has already

challenged his sentence under § 3742(a) on direct appeal, and we denied him any

relief. Leonard , 2002 WL 31516890. Leonard’s arguments for relief in the

instant appeal are largely identical to his arguments on direct appeal, and we

decline to give Leonard another bite at the same apple.

       The only appreciable difference between Leonard’s direct appeal and the

instant appeal is his argument based on     Blakely v. Washington , — U.S. —, 159 L.

Ed. 2d 403, 124 S. Ct. 2531 (2004). According to Leonard, the district court

improperly enhanced his sentence based on his leadership role and prior

convictions. New rules of criminal procedure, however, are applied retroactively

only to cases pending on direct review or cases that are not yet final.      Griffith v.

Kentucky , 479 U.S. 314, 328 (1987). Leonard exhausted his direct appeal and his

case was “final” prior to the Supreme Court’s decision in       Blakely . See id. , 479

U.S. at 321 n.6 (a case is final when “a judgment of conviction has been rendered,

the availability of appeal exhausted, and the time for a petition for certiorari

elapsed or a petition for certiorari finally denied”). Thus,     Blakely, as well as the

Supreme Court’s more recent decision in       United States v. Booker , — S. Ct. —,

2005 WL 50108 (Jan. 12, 2005), have no applicability to Leonard’s sentence.




                                             -5-
                             III. CONCLUSION

     Because we find that the district court had no jurisdiction under 18 U.S.C.

§§ 3742(a) or 3582(b), we DISMISS the appeal.

                                             Entered for the Court

                                             Timothy M. Tymkovich
                                             Circuit Judge




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