United States of America, Plaintiff-appellee, v. Jerome Glen Brown, Defendant-appellant, 974 F.2d 1346 (10th Cir. 1992)

After examining the briefs and 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); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Jerome Glen Brown was convicted of entering a bank with intent to commit robbery and armed bank robbery. He was sentenced on May 5, 1988 to twenty-five years in prison. Mr. Brown contends that he should have been sentenced according to the United States Sentencing Guidelines, effective November 1, 1987, and that his sentence should now accordingly be modified under 18 U.S.C. § 3582(c) (2) (1988).

According to the guidelines, as Mr. Brown correctly argues, courts are to apply the guidelines provisions in effect at the time of sentencing. The guidelines, however, apply only to conduct committed after their effective date, November 1, 1987. United States v. Rogers, 960 F.2d 1501, 1514 (10th Cir. 1992). Mr. Brown's judgment of conviction states that "on or about June 29, 1987, ... the defendant did enter an FDIC insured bank...." Rec., vol. I, doc. 2. He is therefore not eligible for sentencing under the guidelines. Section 3582, under which he seeks resentencing, is also unavailable to defendants who committed their criminal acts before the guidelines went into effect. United States v. Watson, 868 F.2d 157, 158 (5th Cir. 1989); Sentencing Act of 1987, Pub. L. No. 100-182, § 2(a), 101 Stat. 1266.

Mr. Brown's only avenue for modification of his sentence was a timely motion under Rule 35(b), Fed. R. Crim. P. He claims that he did not make such a motion because he lacked adequate information from his attorney to do so. Rec., vol. I, doc. 4 at 2. Even if we had enough information from him to assess this claim, this court would be unable to entertain it in the first instance.

We therefore AFFIRM the order of the district court.