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

                                                                          June 8, 2005
                      UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                      PATRICK FISHER
                                                                                 Clerk


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 04-5173
 v.                                                (D.C. No. 93-CR-01-C)
                                                        (N.D. Okla.)
 LOROAN VERNERS,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      Loroan Verners (“Defendant”), proceeding pro se, appeals the denial of his

motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). We agree with

the district court that Defendant does not qualify for a sentencing reduction.




      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
Therefore, taking jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the

district court.

       A.     Timeliness of appeal

       “The filing of a timely notice of appeal is an absolute prerequisite to our

jurisdiction.” Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1290 (10th Cir.1996).

The government argues that this is an untimely appeal and therefore we have no

jurisdiction. We disagree.

       The district court denied Defendant’s motion to modify his sentence under

§ 3582(c)(2) on October 5, 2004. Pursuant to the federal rules, Defendant’s

notice of appeal was due October 19, 2004. See Fed. R. App. P. 4(B)(1)

(imposing ten-day filing deadline in criminal appeals); id. 26(a)(2) (requiring

exclusion of Saturdays and Sundays in computing any time period less than 11

days). The record shows that Verners mailed his notice of appeal on October 19,

2004, and that it was processed through the prison mail system at the Federal

Medical Center in Lexington, Kentucky.

       Pursuant to the applicable “prisoner mailbox” rule, when:

       an inmate confined in an institution files a notice of appeal in either a civil
       or a criminal case, the notice is timely if it is deposited in the institution’s
       internal mail system on or before the last day for filing. If an institution
       has a system designed for legal mail, the inmate must use that system to
       receive the benefit of this rule. Timely filing may be shown by a
       declaration in compliance with 28 U.S.C. § 1746 or by a notarized
       statement, either of which must set forth the date of deposit and state that
       first-class postage has been prepaid.

                                          -2-
Fed. R. App. P. 4(c)(1); see also United States v. Ceballos-Martinez, 387 F.3d

1140 (10th Cir. 2004). Here, the Certificate of Service Defendant included in his

Notice of Appeal conforms with these requirements and therefore, because he

mailed his notice on the last day for filing, it is timely. Accordingly, we proceed

to consider the merits of this dispute.

      B.     Motion to modify sentence

      Pursuant to the modification statute under which Defendant proceeds:

      a defendant who has been sentenced to a term of imprisonment based on a
      sentencing range that has subsequently been lowered by the Sentencing
      Commission . . . may move the court [and] the court may reduce the term of
      imprisonment, after considering the factors set forth in section 3553(a) to
      the extent that they are applicable, if such a reduction is consistent with
      applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). The district court’s decision to deny a reduction in a

sentence under § 3582(c)(2) is a discretionary one, which we review for abuse of

discretion. United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996). We

review the district court’s interpretation of the sentencing guidelines and other

legal issues de novo. United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997).

      Defendant was convicted of various drug-related offenses. At sentencing,

the court found that Defendant had committed at least one drug offense within

1,000 feet of a school, and therefore enhanced Defendant’s sentence by two

offense levels under U.S.S.G. § 2D1.2. In 2000, the Sentencing Commission

amended the Application Note to § 2D1.2. U.S. Sentencing Guidelines Manual,

                                          -3-
app. C at Amendment 591. This amendment limited § 2D1.2’s applicability to

only cases in which the defendant was actually “convicted of a statutory violation

of drug trafficking in a protected location” or “in a case in which the defendant

stipulated to such a statutory violation.” U.S.S.G. § 2D1.2, app. n.1.

      In the case at bar, Defendant claims he should retroactively be given the

benefit of this limitation in § 2D1.2. The district court correctly concluded that

Amendment 591 does apply retroactively, and therefore that a court may use it to

reduce an existing sentence under § 3582(c)(2). See id. § 1B1.10(c) p.s.

(Amendment 591 may be applied retroactively).

      However, the district court’s further analysis rejected Defendant’s §

3582(c)(2) motion because the court determined that Defendant had in fact been

convicted of a “statutory violation of drug trafficking in a protected location.” Id.

§ 2D1.2, app. n.1. Specifically, the court relied on Defendant’s conviction under

21 U.S.C. § 860(a), an offense imposing enhanced penalties for drug offenses

within 1,000 feet of a school. 1 Therefore, the court concluded, even under the


      1
       Section 860(a) is an offense that enhances the penalty for “[a]ny person
who violates section 841(a)(1) or section 856 of [Title 21] by distributing,
possessing with intent to distribute, or manufacturing a controlled substance in or
on, or within one thousand feet of, the real property comprising a public or
private elementary . . . school . . . .” 21 U.S.C. § 860(a). It is specifically
referenced in § 2D1.2 as an offense for which the two-level enhancement is
intended.
       We have held that the government does not need to prove as an essential
                                                                         (continued...)

                                         -4-
amended version of § 2D1.2, the guidelines still provide for the same two-level

enhancement in Defendant’s case, and as such no § 3582(c)(2) reduction is

warranted here.

      We agree with the district court. The record confirms that Defendant was

indicted for, among other charges, possession with intent to distribute cocaine

base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 860(a), and convicted

of the same. United States v. Verners, 53 F.3d 291, 293 (10th Cir. 1995).

Therefore, given this § 860(a) conviction, the § 2D1.2 enhancement would apply

identically to Defendant’s sentence both before and after Amendment 591. As

such, Defendant was not “sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission,” and he is not entitled to a sentence reduction under this statute. 18

U.S.C. § 3582(c)(2).

      On appeal, Defendant does argue that his conviction under 21 U.S.C. §

860(a) was invalid because both the indictment and the jury instructions were




      1
        (...continued)
element of § 860(a) that the defendant intended to distribute drugs within 1,000
feet of a school. United States v. Harris, 313 F.3d 1228, 1239 (10th Cir. 2002).
Instead, the government need only prove that the defendant possessed illegal
drugs within 1,000 feet of a school and intended to distribute them somewhere.
Id.

                                        -5-
defective as to the elements of § 860(a). 2 However, these issues go to the validity

of Defendant’s § 860(a) conviction itself. A § 3582 motion is a continuation of

the prior criminal proceeding, but it is limited to the narrow sentencing issues

prescribed in § 3582 itself. United States v. Trujeque, 100 F.3d 869, 870 (10th

Cir.1996). Therefore, it cannot be used to create a new vehicle for a collateral

attack on a conviction. See Smartt, 129 F.3d at 542-43 (finding no jurisdiction

under § 3582(c) to consider collateral sentencing issues including probation

department errors, applicability of other statutory sentencing provisions, and

ineffective assistance of counsel, and directing defendant to bring those

arguments in a habeas petition under 28 U.S.C. § 2255).

      In the case before us, because Defendant was convicted under § 860(a), and

because Amendment 591 accordingly had no impact on the applicability of §

2D1.2 to his case, Verners was not entitled to any sentencing reduction under §

3582(c). We AFFIRM the district court.

                                       ENTERED FOR THE COURT

                                       David M. Ebel
                                       Circuit Judge




      2
        At trial, a Tulsa police officer did testify that he was present at the
execution of the search warrant at Defendant’s mother’s house, where the cocaine
at issue was found and stored, and that this house was very close, within 50 feet,
of a school.

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