UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LEROY HUDSON, JR.,

Defendant - Appellant.

No. 02-3141

(D.C. No. 98-CR-40042-DES)

(D. Kansas)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and MURPHY, Circuit Judges.

Appellant Leroy Hudson, Jr. appeals the district court's refusal to modify his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.1

Hudson pleaded guilty to one count of conspiring to possess over five grams of cocaine base with the intent to distribute. He was sentenced to 108 months' imprisonment. Subsequently, he filed a motion to modify his sentence pursuant to 18 U.S.C. § 3582(c) and Federal Rule of Criminal Procedure 35. The district court denied the motion, determining that § 3582 did not authorize it to modify Hudson's sentence.

18 U.S.C. § 3582(c) provides that a district court may not modify a term of imprisonment once it has been imposed except in three circumstances: (1) upon motion of the Director of the Bureau of Prisons if the court finds that extraordinary and compelling reasons warrant such a reduction or if the defendant is at least 70 years of age; (2) if a modification is expressly permitted by statute or Rule 35; or (3) if the defendant has been sentenced based on a range that has been subsequently lowered by the Sentencing Commission. Hudson contends only that modification is authorized by Rule 35(b).2

Rule 35(b) provides that the court may reduce a defendant's sentence to reflect his substantial assistance with law enforcement authorities. Fed. R. Crim. P. 35(b). Importantly, such a reduction may be made only "[i]f the government so moves within one year after the sentence is imposed." Id. The government, however, has made no such motion on Hudson's behalf. Though Hudson's pro se brief is not entirely clear, he seems to argue that Koon v. United States, 518 U.S. 81 (1996), authorizes the district court to modify a sentence pursuant to Rule 35(b) absent a government motion. Koon establishes a framework for analyzing departures at initial sentencing. It does not reference Rule 35 and is not applicable to a motion for modification of a sentence made over two years after sentencing.3

The district court is hereby AFFIRMED.

Entered for the Court

Michael R. Murphy

Circuit Judge