                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        NOV 12 1997
                                 PUBLISH                            PATRICK FISHER
                                                                             Clerk
              UNITED STATES COURT OF APPEALS
                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                   No. 96-8125

 BUDDIE LEE SMARTT,

       Defendant-Appellant,


                  Appeal from the United States District Court
                          for the District of Wyoming
                           (D.C. No. 93-CR-29-01B)


SUBMITTED ON THE BRIEFS:

David T. Duran, Denver, Colorado, for Defendant-Appellant.

David d. Freudenthal, United States Attorney, and David A. Kubichek, Assistant
United States Attorney, Casper, Wyoming, for Plaintiff-Appellee.



Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.


SEYMOUR, Chief Judge.
       Defendant Buddie Lee Smartt appeals the denial of his motion under 18

U.S.C. § 3582(c) for a modification of his term of imprisonment. We affirm. 1



                                          I

       Mr. Smartt was charged with manufacturing, distributing, and possessing

with intent to manufacture and distribute more than 100 marijuana plants in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii) (count I), and using or

carrying a firearm during and in relation to a drug trafficking offense in violation

of 18 U.S.C. § 924(c)(1) (count II). On June 18, 1993, Mr. Smartt pled guilty to

count I. Count II was dismissed at the time his plea was entered. On February

10, 1995, Mr. Smartt was sentenced to a 60 month mandatory minimum period of

incarceration. 2



       Mr. Smartt did not appeal his sentence. In 1996, he filed a motion for

resentencing pursuant to 18 U.S.C. § 3582(c)(2). He claimed the district court


       After examining the briefs and appellate record, this panel has determined
       1

unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.

       Nearly two years passed between Mr. Smartt’s guilty plea and his
       2

sentencing because he was permitted to have scheduled surgery on his legs. Mr.
Smartt suffers from degenerative joint disease and also has had several injuries to
his legs.


                                        -2-
was authorized to reduce his sentence for two reasons. First, he asserted he was

entitled to a reduction because his sentencing range was subsequently lowered by

the United States Sentencing Commission when it altered the way drug quantities

based on a specific number of marijuana plants are to be calculated. See U.S.S.G.

App. C, Amendment 516 (Nov. 1995) (amending U.S.S.G. § 2D1.1(c))

(authorized for retroactive application by U.S.S.G. 1B1.10(c) (Nov. 1995)).

Second, Mr. Smartt asserted that his sentence should be modified because his

medical needs were not being met at his place of confinement. The district court

denied Mr. Smartt’s motion, addressing only his contention regarding the change

in the guideline range. The district court concluded that Mr. Smartt had not been

sentenced using a guideline range but rather in accordance with a statutory

mandatory minimum period which had not been reduced. Consequently, the court

held he was ineligible for relief under 18 U.S.C. § 3582(c)(2).



      Mr. Smartt filed a second motion for reduction of sentence, repeating the

arguments raised in the first motion and adding claims that his medical condition

warranted a reduction under 18 U.S.C. § 3553(b) and that the district court was

permitted to depart from the mandatory minimum sentence under the “safety

valve” provision of section 3553(f). Both subsections (b) and (f) of section 3553

were in effect, but not raised, at the time of Mr. Smartt’s original sentencing. The


                                        -3-
district court reiterated its conclusion that Mr. Smartt was ineligible for a

reduction based on the guidelines amendment. The court further held that Mr.

Smartt was not eligible for a sentence reduction based on the safety valve

provision of section 3553(f) because he failed to satisfy two of the five

requirements of that section.



                                          II

      On appeal, Mr. Smartt contends the district court erred by failing to give

him the benefit of the amended guideline, and by failing to apply sections 3553(b)

and (f) to reduce his sentence from the mandatory minimum. The government

responds that the district court correctly denied Mr. Smartt’s motion for sentence

reduction under section 3582(c)(2), and that the court lacked jurisdiction to

modify Mr. Smartt’s sentence by application of section 3553(b) or (f). We agree

with the government.



      “We review de novo the district court’s interpretation of a statute or the

sentencing guidelines.” United States v. Acosta-Olivas, 71 F.3d 375, 377 (10th

Cir. 1995). “We [also] review de novo the district court’s legal determination

that it possessed jurisdiction to modify Defendant’s sentence.” United States v.

Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). “A district court does not have


                                         -4-
inherent authority to modify a previously imposed sentence; it may do so only

pursuant to statutory authorization.” United States v. Mendoza, 118 F.3d 707,

709 (10th Cir. 1997).



      Because Mr. Smartt’s motion for sentence reduction is not a direct appeal

or a collateral attack under 28 U.S.C. § 2255, “the viability of his motion depends

entirely on [18 U.S.C. § 3582(c)].” United States v. Trujeque, 100 F.3d 869, 870

(10th Cir. 1996). Section 3582(c) provides that a “court may not modify a term of

imprisonment once it has been imposed except” in three limited circumstances.

18 U.S.C. § 3582(c) (emphasis added); see Blackwell, 81 F.3d at 947-48. First,

upon motion of the Director of the Bureau of Prisons, a court may reduce the term

of imprisonment if it finds special circumstances exist. 18 U.S.C. §

3582(c)(1)(A)(i), (ii). Second, a court may modify a sentence if such

modification is “otherwise expressly permitted by statute or by Rule 35 of the

Federal Rules of Criminal Procedure.” Id. § 3582(c)(1)(B). Finally, a court may

modify a sentence if “a sentencing range . . . has subsequently been lowered by

the Sentencing Commission pursuant to 28 U.S.C. 994(o).” 18 U.S.C. §

3582(c)(2).




                                        -5-
      Mr. Smartt posits three grounds which he argues warrant resentencing: his

medical condition, the safety valve provision of section 3553(f), and a subsequent

amendment of the guidelines. Unless the basis for resentencing falls within one

of the specific categories authorized by section 3582(c), the district court lacked

jurisdiction to consider Mr. Smartt’s request. We assess each possible basis for

sentence reduction.



A.    Modification for special circumstances

      Mr. Smartt is not eligible for a special circumstances reduction based on his

medical condition. Section 3582(c)(1)(A), which arguably might encompass this

claim, requires that a motion be brought by the Director of the Bureau of Prisons.

This requirement was not met.



B.    Modification expressly permitted by statute or Rule 35

      Mr. Smartt is also ineligible for a reduction under section 3582(c)(1)(B).

That section authorizes a court to “modify an imposed term of imprisonment to

the extent otherwise expressly permitted by statute or by Rule 35.” Mr. Smartt

does not assert that any of the requisite conditions for Rule 35 relief are present.

See Blackwell, 81 F.3d at 948-49 (describing applicability of Rule 35). Rather,

he argues that the safety valve provision of 18 U.S.C. § 3553(f), which requires


                                         -6-
departure from the mandatory minimum in some circumstances, 3 and section




      3
          The safety valve provision provides:

      “the court shall impose a sentence . . . without regard to any statutory
      minimum, if the court finds at sentencing . . . that

             (1) the defendant does not have more than 1 criminal history
      point, as determined under the sentencing guidelines;
             (2) the defendant did not use violence or credible threats of
      violence or possess a firearm or other dangerous weapon (or induce
      another participant to do so) in connection with the offense;
             (3) the offense did not result in death or serious bodily injury
      to any person;
             (4) the defendant was not an organizer, leader, manager, or
      supervisor of others in the offense, as determined under the
      sentencing guidelines and was not engaged in a continuing criminal
      enterprise, as defined in section 408 of the Controlled Substance Act;
      and
             (5) not later than the time of the sentencing hearing, the
      defendant has truthfully provided to the government all information
      and evidence the defendant has concerning the offense or offenses
      that were part of the same course of conduct or of a common scheme
      or plan, but the fact that the defendant has no relevant or useful other
      information to provide or that the Government is already aware of the
      information shall not preclude a determination by the court that the
      defendant has complied with the requirement.

18 U.S.C. § 3553(f) (emphasis added).

       The district court found Mr. Smartt failed to carry his burden to show that
he had not possessed firearms in connection with the offense, § 3553(f)(2), and
that he had truthfully provided to the government all information and evidence
concerning the offense, § 3553(f)(5). Given our determination that the district
court lacked jurisdiction to consider Mr. Smartt’s entitlement to a safety valve
reduction, we do not address the merits of the district court’s decision.

                                         -7-
3553(b), which might encompass Mr. Smartt’s medical condition, 4 are both

statutes that expressly permit modification of a sentence and are applicable to

him. We disagree.



      We read section 3582(c)(1)(B) to permit modification of an imposed term

of imprisonment only where a statute expressly provides for reduction of a

previously imposed sentence. That is what Rule 35 provides, and it does not

make sense to us that Congress intended section 3582(c)(1)(B) to mean that any

statute permitting a district court to consider special factors at sentencing, which

is what section 3553(b) and (f) do, could be utilized to modify a sentence after it

becomes final.



      The plain language of section 3553 supports this conclusion. The entire

section is directed at the initial imposition of a sentence. Mr. Smartt was

sentenced in 1995 and has established no jurisdiction for resentencing. See infra

Part C. This case is therefore distinguishable from cases permitting the

application of the safety valve provision at resentencings where the district court



      4
       Section 3553(b) permits a court, at sentencing, to depart from the
prescribed sentencing range for a mitigating circumstance of a kind not
adequately considered by the Sentencing Commission. The district court did not
address this argument, and we hold infra that it lacked jurisdiction to do so.

                                        -8-
has otherwise been authorized to set the sentence anew. See, e.g., United States

v. Clark, 110 F.3d 15, 16 (6th Cir. 1997) (resentencing jurisdiction based on

section 3582(c)(2)). Cf. United States v. Williams, 103 F.3d 57, 58 (8th Cir.

1996) (per curiam) (government may seek section 5553(e) reduction of sentence

when court has resentencing jurisdiction under 3582(c)(2)). We hold that neither

section 3553(b) nor (f) provides for modification of an imposed sentence within

the meaning of section 3582(c)(1)(B). The district court therefore lacked

jurisdiction to consider the merits of applying the safety valve provision.



      C.     Subsequent lowering of sentencing range

      After Mr. Smartt was sentenced, the marijuana plant/weight equivalencies

in the Sentencing Guidelines were modified. If the modifications were applicable

to Mr. Smartt, they would result in a lower sentencing range, see U.S.S.G. App.

C, Amendment 516, and Mr. Smartt would be entitled to a reduction under section

3582(c)(2). However, Mr. Smartt was not sentenced pursuant to the guidelines.

Rather, he was sentenced to a statutory mandatory minimum which must be

imposed when a defendant is convicted of possession of “100 or more marijuana

plants regardless of weight.” 21 U.S.C. § 841(b)(1)(B)(vii) (emphasis added). 5


      5
       As we discuss in Part III, the circumstances of this case are very unusual.
The safety valve provision of 18 U.S.C. § 3553(f), which authorized the
sentencing court to disregard the statutory minimum, was in effect at the time Mr.

                                         -9-
The Sentencing Commission’s subsequent amendment of the guideline

plant/weight equivalencies did not amend the statute requiring the mandatory

minimum sentence for possession of 100 or more marijuana plants. See United

States v. Novey, 78 F.3d 1483, 1486 (10th Cir. 1996) (“[T]he Sentencing

Commission does not have the authority to override or amend a statute.” (citing

Neal v. United States, 116 S. Ct. 763, 766, 768 (1996)), cert. denied, 117 S. Ct.

2407 (1997). Mr. Smartt was thus ineligible for a reduction of sentence under

section 3582(c)(2). See United States v. Mullanix, 99 F.3d 323, 324 (9th Cir.

1996) (defendant not entitled to a reduction in sentence pursuant to Amendment

516 because original sentence was the statutory minimum term of 60 months),

cert. denied, 117 S. Ct. 1457 (1997); United States v. Marshall, 95 F.3d 700, 701

(8th Cir. 1996) (per curiam) (where defendant possessed over 100 marijuana

plants, Amendment 516 could not lower defendant’s sentence below the 60-month

statutory minimum).



                                         III

      The safety valve provision in section 3553(f) had not yet been enacted

when Mr. Smartt pled guilty. However, due to the long delay between his guilty




Smartt was sentenced. Nonetheless, that provision was not addressed by the
parties or the court and Mr. Smartt was sentenced as though it did not exist.

                                        - 10 -
plea and his sentencing, see supra note 1, the provision became effective prior to

Mr. Smartt’s sentencing and could have been considered then by the district court

had it been raised. See United States v. Torres, 99 F.3d 360, 362 (10th Cir. 1996)

(“safety valve exception applies to all sentences imposed on or after September

23, 1994"), cert. denied, 117 S.Ct. 1273 (1997). Mr. Smartt contends the

probation department had a continuing duty to update his presentence report and

should have considered the applicability of the safety valve provision, and that his

counsel was ineffective for failing to raise it. We have no jurisdiction under

section 3582(c) to consider these issues. If Mr. Smartt wishes to raise the failure

of his counsel and the district court to apply section 3553(f) at the time of his

original sentencing, he must do so in a petition under 28 U.S.C. § 2255.



      We AFFIRM the district court’s dismissal of Mr. Smartt’s motion under

3582(c) for sentence reduction.




                                         - 11 -
