UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD JOSEPH LEIDER,

Defendant - Appellant.	No. 06-4079

(D.C. No. 2:04-CR-594-PGC; 2:05-
CV-1024-PGC)

(D. Utah)

ORDER AND JUDGMENT*

Before HARTZ, EBEL and TYMKOVICH, Circuit Judges.

Defendant-Appellant Richard Joseph Leider appeals from the district court's decision denying his motion to modify his sentence under 18 U.S.C. § 3582.1 We AFFIRM.

Leider pled guilty to seven counts of bank fraud, in violation of 18 U.S.C. 1344.2 The indictment to which Leider pled guilty alleged generally that, from 1994 through 2002, Leider "developed and executed a scheme to defraud" three banks: U.S. Bank, Key Bank, and Zions Bank. The Indictment further alleged:

2. As part of the scheme to defraud, [Leider] opened bank accounts in names not his own through the use of false identification documents.

3. As further part of the scheme, [Leider] made fraudulent deposits to those accounts through the use of checks drawn on nonexistent accounts or accounts with insufficient funds.

4. In execution of the scheme, [Leider], knowing that there were insufficient funds in the accounts he had opened, made withdrawals from those accounts by the fraudulent use of checks, bank withdrawals, automatic teller machines and debit cards, causing a loss to the banks in the following amounts:

U.S. Bank - $20,528

Key Bank - $21,401

Zions Bank - $24,845

At sentencing, although the district court determined that the applicable guideline range was thirty to thirty-seven months, the court instead imposed the twenty-four-month sentence to which the parties stipulated as part of the plea agreement. The district court imposed this sentence on April 5, 2005 and further ordered this federal sentence to run concurrently with a one-year state sentence that Leider was already serving at that time. The misdemeanor conviction underlying that state sentence was for passing a bad check in order to obtain $2,439.66 unlawfully from Zions Bank in July 2002, during the same time that Leider admitted executing the bank fraud scheme.

Leider did not file a direct appeal. After completing his state sentence, Leider was transferred to federal custody in August 2005. There, Bureau of Prisons ("BOP") officials calculated his release date, crediting his federal sentence with the time Leider had served in state custody after the imposition of his federal sentence.3 When Leider realized the BOP was not crediting his federal sentence for the time he served in state prison before his federal sentencing, Leider filed a 18 U.S.C. § 35824 motion asking the district court to modify his sentence. In that § 3582 motion, Leider asserted that U.S.S.G. § 5G1.3(b)5 required that the district court credit against his federal sentence the entire time he served on his state conviction.

The district court denied that motion. Reviewing the district court's decision de novo, see United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997), we affirm.

"A district court does not have inherent authority to modify a previously imposed sentence." Id. Rather, "[a] district court is authorized to modify a defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so." Price, 438 F.3d at 1007 (quotation, alteration omitted); see also Smartt, 129 F.3d at 541; United States v. Blackwell, 81 F.3d 945, 947-48 (10th Cir. 1996).

In this case, Leider specifically invoked 18 U.S.C. § 3582(c)(2). But that statutory provision permits a district court to modify a sentence only when " the defendant . . . has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o)." See also United States v. Herrera-Garcia, 422 F.3d 1202, 1203 (10th Cir. 2005); United States v. Chavez-Salais, 337 F.3d 1170, 1173 (10th Cir. 2003). And Leider does not assert that that is the case here.6

Leider also invoked § 3582 generally. Section 3582(c)(1)(A) permits the district court to modify a sentence if the BOP's Director moves for a sentence reduction due to "extraordinary and compelling reasons" or if the inmate, among other things, "is at least 70 years of age, has served 30 years in prison" and the BOP Director has determined that "the defendant is not a danger to the safety of any other person or the community." See also Smartt, 129 F.3d at 541. Again, that is not the case here. See id.

Lastly, § 3582(c)(1)(B) provides that a district "court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." See also Smartt, 129 F.3d at 541. But Leider does not assert "that any of the requisite conditions for Rule 35 relief are present." Id. Nor does it appear that he could make such an assertion under the facts of this case. Rule 35(a) permits a district court, "[w]ithin 7 days after sentencing," to "correct a sentence that resulted from arithmetical, technical, or other clear error."7 But Leider asserted his § 3582 motion well after that seven-day time frame. (R. doc. 1.) And Rule 35(b) permits the district court to reduce a defendant's sentence in light of "substantial assistance" the inmate provided to the Government. Leider's allegations do not implicate that provision, either.

For these reasons, § 3582 does not apply to Leider's circumstances. We, therefore, AFFIRM the district court's decision declining to modify Leider's sentence under § 3582. See Herrera-Garcia, 422 F.3d at 1203; United States v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003).

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge