Opinion
CAUSE NUMBER 3:06-CR-103(01).
August 13, 2008
OPINION AND ORDER
Anthony Boxley has filed a motion that he claims to be pursuant to 18 U.S.C. § 3742(a)(2) seeking a modification of his 57-month sentence for possessing a firearm after conviction of a felony. Mr. Boxley says he should have been in criminal history category IV rather than category V because he shouldn't have received criminal history points for two of his prior sentences. Mr. Boxley already filed a "Motion to Reduce Sentence Pursuant to 18 U.S.C. Section 3582(c)(2)" based on the same argument. This court denied that motion and his appeal from that ruling was denied.
18 U.S.C. § 3742(a)(2) provides that a defendant "may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence . . . (2) was imposed as a result of an incorrect application of the sentencing guidelines. . . ." Section 3742 provides an appeal to the court of appeals, not a method for a district court to change a sentence. See Jackson v. United States, 463 F.3d 635, 638 (7th Cir. 2006). It is now too late for Mr. Boxley to appeal; his notice of appeal had to be filed within 10 days of the entry of judgment (May 31, 2007), FED. R. APP. P. 4(b)(1)(A), and this motion was filed on July 16, 2008.
Even if the court agreed with the substance of Mr. Boxley's argument, this court has no authority to modify his sentence. The court could have corrected a sentence that resulted from arithmetical, technical, or other clear error within seven days after sentencing, FED. R. CRIM. P. 35(a), but that time passed long ago, and it is most doubtful that the shortcomings Mr. Boxley perceives would constitute arithmetical, technical or other clear error.
Because the court has no authority to grant the relief sought, the court DENIES the defendant's motion (doc. #51).
SO ORDERED.