Opinion
No. 08-41346 Summary Calendar.
October 19, 2009.
Kerry M. Klintworth, Assistant U.S. Attorney, U.S. Attorney's Office, Beaumont, TX, for Plaintiff-Appellee.
Bryan Sperry Laine, Bryan Laine PC, Kountze, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Texas, USDC No. 1:93-CR-223-ALL.
Before DAVIS, SMITH and DENNIS, Circuit Judges.
Travis Spencer appeals the denial of motions to amend his original sentence and to correct a clerical error in an amended judgment. A collateral attack on or direct appeal from the 1995 sentence would be untimely, and Spencer disavows such a challenge. See 28 U.S.C. § 2255(f); FED. R.APP. P. 4(b)(1)(A).
Spencer contends that 18 U.S.C. § 3582(c)(1)(B) provides an avenue for applying 18 U.S.C. § 3553(b)(1) to modify the sentence. This contention lacks merit because § 3582(c)(1)(B) allows a district court to modify an existing term of imprisonment to the extent "expressly permitted by statute," and § 3553(b)(1) does not expressly permit the modification of a sentence that has already been imposed. See §§ 3553(b)(1), § 3582(c)(1)(B). Section 3582(c)(1)(B) therefore does not provide a means for applying § 3553(b)(1). See United States v. Garcia-Quintanilla, 574 F.3d 295, 303 (5th Cir. 2009) (refusing to use § 3582(c) as a means to apply a statute that does not expressly permit modification of a sentence that has already been imposed). Moreover, § 3553(b)(1), which required treating the Sentencing Guidelines as mandatory, is unconstitutional. United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Any clerical error was corrected by the Second Amended Judgment reflecting that the district court recommended but did not order that the Bureau of Prisons run Spencer's federal sentence consecutively to an undischarged state sentence. The judgment of the district court is AFFIRMED.