[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 22, 2005
No. 04-16248 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 90-00223-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKIE LOCKHART,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 22, 2005)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Rickie Lockhart, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion to modify his sentence pursuant to 18 U.S.C.
§ 3582(c)(1). On appeal, Lockhart argues that the district court erred in ruling that
his § 3582 motion was procedurally improper and contends that the district court
should have looked behind the label of his § 3582 motion and re-characterized it,
although he fails to specify under what remedial framework the district court
should have construed his motion. In addition, Lockhart maintains that the district
court should have addressed the merits of his claim relating to Blakely and United
States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005), because he presented that
claim in the trial court. Finally, Lockhart makes a passing reference that he is
appealing the district court’s order “that appellant’s motion may be fairly
construed as a successive § 2255 motion.”
We review a district court’s decision with respect to a reduction of sentence
pursuant to 18 U.S.C. § 3582(c) for an abuse of discretion. See United States v.
Cothran, 106 F.3d 1560, 1562 (11th Cir.1997). 18 U.S.C. § 3582(c)(1) provides,
in pertinent part, that a district court may not modify a term of imprisonment once
it has been imposed except (1) on a motion of the Director of the Bureau of
Prisons, or (2) to the extent authorized by Fed.R.Crim.P. 35. See 18 U.S.C. §
3582(c)(1). In turn, Fed.R.Crim.P. 35 provides that a court may correct a sentence
(1) that resulted from arithmetical, technical, or other clear error within seven days
after sentencing, or (2) upon a substantial assistance motion filed by the
government. Fed.R.Crim.P. 35 (a), (b).
2
A plain reading of the language of 18 U.S.C. § 3582(c)(1) supports the
conclusion that the district court correctly found that none of the provisions of
§ 3582(c) or Rule 35 applied, and therefore, that it did not have the authority to
modify Lockhart’s sentence. Here, the record establishes that neither the Director
of the Bureau of Prisons nor the government filed a motion for a sentence
reduction, and Lockhart’s motion was not filed within seven days of sentencing.
Therefore, the district court was powerless to modify Lockhart’s sentence under
18 U.S.C. § 3582(c)(1), and we affirm. See United States v. Diaz-Clark, 292 F.3d
1310, 1319 (11th Cir. 2002) (holding that outside of Rule 35, there exists no
inherent authority for a district court to modify a sentence.).
The district court also properly found that “to the extent [Lockhart’s] § 3582
motion may be fairly construed as a successive § 2255 motion, the [district court]
is powerless to consider it absent authorization from the U.S. Court of Appeals for
the Eleventh Circuit.” Because Lockhart sought a modification of his sentence
that did not comport with § 3582(c), the only statute that may have accorded him
relief was § 2255. This Court had previously denied Lockhart’s application for
leave to file a successive § 2255 motion.1 Therefore, the district court was correct
1
In any event, we have held that because the Supreme Court has not made Booker
retroactively applicable to cases on collateral review, an application to file a second or
successive § 2255 petition based on Booker does not meet the statutory criteria. In re
3
in concluding it did not have the power to consider it as such, and properly denied
Lockhart’s motion.2
AFFIRMED.
Anderson, 396 F.3d 1336, 1340 (11th Cir.2005).
2
Lockhart’s request for oral argument is denied.
4