United States of America, Plaintiff-appellee, v. Willie P. James, Defendant-appellant, 898 F.2d 148 (4th Cir. 1990)

Willie P. James, a federal prisoner sentenced under the sentencing guidelines for an offense committed after November 1, 1987, brought this motion for correction of sentence pursuant to Fed. R. Crim. P. 35(a). The district court denied the motion on April 21, 1989, on the basis that Rule 35(a) does not provide authority for correction of a guidelines sentence except upon remand from the appellate court. James moved for reconsideration on May 23, 1989, this time relying on 18 U.S.C. § 3582(c). The district court denied the motion for reconsideration on July 6, 1989, and James appealed on July 13.

The district court's order denying the motion for correction of sentence became final 10 days after entry, no appeal having been noted within the time allowed under Fed. R. App. P. 4(b). United States v. Breit, 754 F.2d 526 (4th Cir. 1985). Because James's notice of appeal was not timely filed from this order this Court does not have jurisdiction to review the denial of the motion for correction. Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978).

Further, the district court did not have jurisdiction to reconsider the order once it became final upon expiration of the appeal period. Breit, 754 F.2d at 530. Finally, even if the motion for reconsideration is treated as a new motion for correction, neither Rule 35(a) nor 18 U.S.C. § 3582(c) would provide the district court with jurisdiction to modify James's sentence in these circumstances. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not significantly aid in the decisional process.

AFFIRMED.