U.S. v. Leider, (10th Cir. 2006)

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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
href="#N_*_" name="txt*">(*)

Before HARTZ,
name="9">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. 3582
name="txt4a">(4) 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."
name="txt7a">(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

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.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.

1.We GRANT Leider's motion to proceed in

forma pauperis. See 28 U.S.C. 1915; see also United States v. Price, 438 F.3d 1005, 1007 (10th Cir.)

(granting

appellant's motion to appeal in forma pauperis from denial of 18 U.S.C. 3582

motion), cert. denied, 126 S. Ct. 2365 (2006).

2.Section 1344 provides that

[w]hoever knowingly executes, or attempts to execute, a scheme or

artifice­

(1) to defraud a financial institution; or

(2) to obtain any of the moneys, funds, credits, assets,

securities, or other property owned by, or under the

custody or control of, a financial institution, by means of

false or fraudulent pretenses, representations, or promises;

shall be fined no more that $1,000,000 or imprisoned not more than 30

years, or both.

3.The BOP did not initially credit Leider's

federal sentence with this period

of state imprisonment. In his § 3582 motion, therefore, Leider asserted that the

BOP was running his federal sentence consecutively rather than concurrently

with his state sentence. The district court, in otherwise denying Leider's

§ 3582

motion, did note that the BOP had incorrectly calculated Leider's federal

sentence from August 2, 2005, the date he was transferred into federal custody,

rather than from April 5, 2005, the date the district court imposed the federal

sentence. The district court requested that the BOP change this to reflect that his

federal sentence began to run from the date it was imposed, April 5, 2005. In

this manner, then, the federal sentence ran concurrently with the state sentence,

beginning on the date that the district court imposed the federal sentence.

4.Leider specifically rejected the district

court's attempt to construe his

§ 3582 motion as one made instead under 28 U.S.C. 2255.

5.Because the district court sentenced Leider

in April 2005, the 2004

sentencing Guidelines, effective in November 2004, apply unless doing so would

result in an ex post facto violation. See U.S.S.G. § 1B1.11(a), (providing

that

generally district court must use guidelines in effect on date of sentencing),

(b)(1) (providing that if applying the guidelines in effect at the time of

sentencing would result in an ex post facto violation, then the district court

should apply the guidelines in effect at the time the defendant committed the

crime for which he is being sentenced). Leider has not asserted, and we cannot

conclude, that applying the 2004 guidelines in this case would result in any ex

post facto violation. We, therefore, apply the 2004 Guidelines. That version

of

§ 5G1.3 provided:

(a) If the instant offense was committed while the defendant was

serving a term of imprisonment (including work release, furlough, or

escape status) or after sentencing for, but before commencing service

of, such term of imprisonment, the sentence for the instant offense shall

be imposed to run consecutively to the undischarged term of

imprisonment.

(b) If subsection (a) does not apply, and a term of imprisonment

resulted from another offense that is relevant conduct to the instant

offense of conviction under the provisions of subsection (a)(1), (a)(2),

or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the basis for an

increase in the offense level for the instant offense under Chapter Two

(Offense Conduct) or Chapter Three (Adjustments), the sentence for the

instant offense shall be imposed as follows:

(1) the court shall adjust the sentence for any period of

imprisonment already served on the undischarged term of

imprisonment if the court determines that such period of

imprisonment will not be credited to the federal sentence

by the Bureau of Prisons; and

(2) the sentence for the instant offense shall be imposed to

run concurrently to the remainder of the undischarged

term of imprisonment.

(c) (Policy Statement) In any other case involving an undischarged term

of imprisonment, the sentence for the instant offense may be imposed

to run concurrently, partially concurrently, or consecutively to the prior

undischarged term of imprisonment to achieve a reasonable punishment

for the instant offense.

6.Even if there was an amendment that

lowered the guidelines that were

applicable to Leider, he would still not be entitled to a sentence modification

under § 3582(c)(2) because the district court in this case did not apply the

guidelines to calculate Leider's sentence; the district court instead imposed the

sentence to which Leider and the Government had stipulated in the plea

agreement. See United States v. Trujeque, 100 F.3d 869, 870 (10th Cir.

1996).

7.Rule 36, Fed. R. Crim. P., would also

permit the district court to correct a

sentence for clerical error. But Leider does not allege a clerical error.

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