                                                          FILED
                                              United States Court of Appeals
                  UNITED STATES COURT OF APPEALS      Tenth Circuit

                         FOR THE TENTH CIRCUIT                 December 4, 2018
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

    v.                                                No. 18-2102
                                         (D.C. No. 2:12-CR-02005-RB-SMV-1)
    WARREN B. MARKER,                                  (D.N.M.)

          Defendant - Appellant.
                      _________________________________

                          ORDER AND JUDGMENT *
                       _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
               _________________________________

         This appeal involves Mr. Warren Boyd Marker’s motion in the

district court for dismissal/time served. In the motion, Mr. Marker argued

that the court had waited too long to impose the sentence. See Fed. R.

Crim. P. 32(b)(1). As a remedy for this alleged violation, Mr. Marker

sought a reduction in his sentence.




*
     Though Mr. Marker requests oral argument, it would not be helpful
because he has not briefed the jurisdictional issue.
      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).
      The district court denied the motion on the merits, and Mr. Marker

has appealed. In our view, however, the district court lacked jurisdiction to

modify the sentence and should have dismissed the motion for lack of

jurisdiction.

      A district court may modify a sentence only when Congress has

expressly granted jurisdiction. United States v. Blackwell, 81 F.3d 945, 947

(10th Cir. 1996); 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.”). This jurisdiction has been granted in 18 U.S.C. § 3582

and Federal Rule of Criminal Procedure 36. But Mr. Marker does not allege

any of the circumstances that would trigger § 3582 or Rule 36. See 18

U.S.C. § 3582(c)(1)(A), (c)(1)(B), (c)(2); Fed. R. Crim. P. 36.

      The court can sometimes modify a sentence under 28 U.S.C. § 2255,

but Mr. Marker has not invoked § 2255. We have occasionally

recharacterized pro se motions as invoking § 2255 to aid pro se litigants,

but doing so here could do harm to Mr. Marker. See Castro v. United

States, 540 U.S. 375, 381–82 (2003). Mr. Marker already has a § 2255

motion pending in the district court, and that case could be derailed if we

were to recharacterize the present motion as one brought under § 2255.

                                    * * *



                                      2
     Without statutory authority to modify Mr. Marker’s sentence, the

district court lacked jurisdiction and should have dismissed the motion

rather than deny relief on the merits. See United States v. White, 765 F.3d

1240, 1250 (10th Cir. 2014) (stating that a motion to modify a sentence

should have been dismissed for lack for jurisdiction, rather than denied,

when the district court lacked statutory authority to modify the sentence).

We therefore (1) deny Mr. Marker’s request for mandamus or a stay,

(2) vacate the district court’s denial of Mr. Marker’s motion, and

(3) remand to the district court with instructions to dismiss the motion for

dismissal/time served based on a lack of jurisdiction.


                                      Entered for the Court


                                      Robert E. Bacharach
                                      Circuit Judge




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