                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       May 13, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 08-7009
          v.                                           (E.D. Oklahoma)
 WILLIE RAY TAYLOR,                             (D.C. No. CR-78-29-03-FHS)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Proceeding pro se, defendant and appellant Willie Ray Taylor appeals the

denial of his “Motion for Nunc Pro Tunc Order and Amended Judgment.” We

affirm.


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                 BACKGROUND

      On May 10, 1978, Taylor was found guilty, following a jury trial, of bank

robbery, in violation of 18 U.S.C. § 2113(a) and (d), and sentenced to twenty-one

years’ imprisonment. His conviction and sentence were affirmed on direct

appeal. United States v. Taylor, 605 F.2d 1177 (10 th Cir. 1979).

      On July 13, 2001, Taylor was released on parole. 1 On August 7, 2002, the

United States Parole Commission issued a warrant for Taylor’s arrest, after he

was charged by the State of Oklahoma with the felony crime of first-degree arson.

On April 21, 2003, Taylor pled nolo contendere to that charge and was sentenced

to four years in the custody of the State of Oklahoma Department of Corrections.

The Oklahoma court’s judgment and sentence stated that it was to be “served

CONCURRENTLY WITH: Federal probation revocation.” R. Vol. I. On

August 16, 2006, following completion of his state sentence, Taylor was

transferred to federal custody to serve his term for violating his parole from the

1978 sentence.

      On December 6, 2007, Taylor filed a Motion for Nunc Pro Tunc Order and

Amended Judgment, asking the district court to order the Federal Bureau of




      1
       “Because [Taylor] was originally sentenced in 197[8], his period of
incarceration is governed by the federal parole system that predated the
Sentencing Guideline regime adopted by the Sentencing Reform Act of 1984.”
Gometz v. United States Parole Comm’n, 294 F.3d 1256, 1259 (10 th Cir. 2002).

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Prisons to credit his state time served for arson against his federal sentence. The

district court denied his motion, and Taylor has timely appealed.

       Taylor argues that, based upon the Oklahoma state court’s statement that

his state term of imprisonment should be served “concurrently” with his federal

term, the federal district court should re-sentence him to reflect his belief that he

has already served enough prison time and should be immediately released. As

the government points out, this argument fails for multiple reasons.



                                    DISCUSSION

       I. The District Court Lacked Jurisdiction Over Motion:

       We review de novo a district court’s determination as to its jurisdiction.

United States v. Roberts, 181 F.3d 1125, 1129 (10 th Cir. 1999). We review a

district court’s decision whether to reduce a sentence pursuant to 18 U.S.C.

§ 3582(c)(2) for an abuse of discretion. United States v. Telman, 28 F.3d 94, 96

(10 th Cir. 1994).

       “A district court does not have 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 (10 th Cir. 1997). Taylor’s sentence was

affirmed on appeal in 1979 and therefore the time had long expired for a petition

under 28 U.S.C. § 2255. Accordingly, the district court considered whether

Taylor might be entitled to relief under 18 U.S.C. § 3582.

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      Section 3582(c) provided that a “court may not modify a term of

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

(1) “[u]pon 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.

§ 3502(c)(1)(A)(I) or (ii); (2) a court may modify a sentence if such modification

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

Rules of Criminal Procedure,” 18 U.S.C. § 3502(c)(1)(B); and (3) 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). Taylor has presented no evidence or argument that any of these

circumstances is present. The district court therefore correctly ruled that it lacked

jurisdiction to modify Taylor’s 1978 sentence.



      II. Failure to Exhaust Administrative Remedies:

      Taylor is challenging a decision of the United States Parole Commission.

The government points out that he has failed to exhaust administrative procedures

for federal parolees. Any decision by the United States Parole Commission is

appealable to the National Appeals Board. See 18 U.S.C. § 4215. Taylor has not

demonstrated that he exhausted those remedies.




                                         -4-
      III. Oklahoma Lacks Authority to Bind Parole Commission:

      Taylor is asking us to enforce an Oklahoma state court’s recommendation

that Taylor’s state sentence run concurrently with his federal sentence following

the revocation of his parole. “Unfortunately, under our dual sovereign system of

government, the state court’s order could not bind the Commission.” Turner v.

United States Parole Comm’n, 39 F.3d 1193 (10 th Cir. 1994). As we have stated

previously, “the Parole Commission is an independent entity that is not bound by

a state judgment in which it did not participate.” Cotton v. United States Parole

Comm’n, 992 F.2d 270, 271 (10 th Cir. 1993).



      IV. Parole Commission Regulations Prohibit Crediting Time Served in
      State Custody:

      Pursuant to 18 U.S. C. § 4203(a)(1), Congress has delegated regulatory

power to the United States Parole Commission. The Commission has

implemented regulations preventing the very relief Taylor seeks:

      It is the Commission’s interpretation of 18 U.S.C. § 4210(b)(2) that,
      if a parolee has been convicted of a new offense committed
      subsequent to his release on parole, which is punishable by any term
      of imprisonment, detention, or incarceration in any penal facility,
      forfeiture of time from the date of such release to the date of the
      execution of the warrant is an automatic statutory penalty, and such
      time shall not be credited to the service of the sentence.

28 C.F.R. § 2.52(c)(2). The Commission’s decision not to credit Taylor with the

time served in state prison is consistent with that regulation. “We will not disturb


                                        -5-
a decision by the Parole Commission ‘unless there is a clear showing of arbitrary

and capricious action or an abuse of discretion.’” Gometz, 294 F.3d at 1260

(quoting Sotelo v. Hadden, 721 F.2d 700, 702 (10 th Cir. 1983)). “The inquiry is

not whether the Commission’s decision is supported by the preponderance of the

evidence, or even by substantial evidence; the inquiry is only whether there is a

rational basis in the record for the Commission’s conclusions embodied in its

statement of reasons.” Id. (further quotations omitted). There is certainly a

rational basis for the Commission’s decision to not credit Taylor’s state sentence

against his federal sentence.



                                 CONCLUSION

      For the foregoing reasons, the district court’s denial of Taylor’s motion is

AFFIRMED.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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