FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 February 5, 2009
                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                            Nos. 08-5074 & 08-5093
                                              (D.C. No. 4:97-CR-00053-HDC-2)
    DERRICK EUGENE KIRTMAN,                              (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.



         Derrick Eugene Kirtman, a federal prisoner appearing pro se, appeals from

the district court’s denial of his motion for sentence modification pursuant to

18 U.S.C. § 3582(c)(2) and his motion for reconsideration of that denial (Appeal

No. 08-5074). In a consolidated appeal, Mr. Kirtman also appeals the district

court’s denial of his Fed. R. Civ. P. 60(b) motion to reopen his judgment of



*
       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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
conviction and his motion for reconsideration (Appeal No. 08-5093). In Appeal

No. 08-5074, we affirm. In Appeal No. 08-5093, we remand the matter to the

district court with instructions to vacate its order and enter a dismissal for lack of

jurisdiction.

                               I. Appeal No. 08-5074

      Mr. Kirtman’s § 3582(c)(2) motion sought to modify the life sentence

imposed in 1998 for his role in a crack-cocaine conspiracy. His motion relied

upon the United States Sentencing Commission’s retroactive amendment to the

United States Sentencing Guidelines (U.S.S.G.) that provided a two-level

reduction in base offense levels for most crack offenses. See U.S.S.G. Supp. to

App. C, Amend. 706 (Amendment 706).

      The district court determined that, although Amendment 706 did reduce the

base offense level for the quantity of crack cocaine (in excess of 1.5 kilograms)

attributed to Mr. Kirtman at his original sentencing from 38 to 36, it did not lower

the applicable guideline range under which he was sentenced. Mr. Kirtman’s total

offense level at sentencing was increased eight levels beyond the base offense

level: two levels for the use of firearms during the conspiracy; four levels for

being an organizer or leader of a criminal activity; and two levels for using

persons under eighteen years of age to commit the offense. Even with the

two-level reduction to Mr. Kirtman’s base offense level under Amendment 706,

these enhancements still result in a total offense level of 44, which requires life

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imprisonment. U.S.S.G. Ch. 5, Pt. A. Because Mr. Kirtman’s sentence is

unaffected by Amendment 706, the district court denied Mr. Kirtman’s motion.

Mr. Kirtman filed a motion to reconsider, which was denied.

      We review a district court’s decision to deny a reduction in sentence under

§ 3582(c)(2) for abuse of discretion. United States v. Sharkey, 

,

1238 (10th Cir. 2008). On appeal, Mr. Kirtman argues that Amendment 706

reduces his base offense level. That, however, is insufficient to warrant a

sentence modification. To proceed with a § 3582(c)(2) motion, Mr. Kirtman must

show that application of a retroactive guideline would reduce his sentencing

range. See 18 U.S.C. § 3582(c)(2) (authorizing district court to reduce a term of

imprisonment if the defendant’s sentence was “based on a sentencing range that

has subsequently been lowered by the Sentencing Commission”) (emphasis

added); see also U.S.S.G. § 1B1.10(a)(2)(B) (stating that a reduction “is not

consistent with this policy statement,” and therefore not authorized under

§ 3582(c)(2), when “an amendment listed in subsection (c) does not have the

effect of lowering the defendant’s applicable guideline range”). Because

Mr. Kirtman’s advisory guideline range is unchanged by the application of

Amendment 706, he is ineligible for relief under § 3582(c)(2). Thus, the district

court did not abuse its discretion in denying his motion. See 

(holding that district court did not abuse its discretion in denying

§ 3582(c)(2) motion, where other guideline provisions produced a total offense

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level which did not alter the guideline range from that originally determined by

the sentencing court).

      In his motion for reconsideration, Mr. Kirtman argued that the district court

failed to consider the 18 U.S.C. § 3553(a) factors and had the discretion to

impose a non-guideline sentence under United States v. Booker, 

(2005). In United States v. Rhodes, however, we held that § 3582(c)(2) does not

permit resentencing based solely on § 3553 factors and objectives, and that

§ 3582(c)(2) motions may not be employed to present Booker-type claims.

, 840 (10th Cir. 2008), petition for cert. filed (U.S. Jan. 21, 2009)

(No. 08-8318). Because the district court did not resentence Mr. Kirtman, it had

no basis to consider the § 3553(a) factors. 

.

      Accordingly, we affirm the district court’s denial of Mr. Kirtman’s

§ 3582(c)(2) motion and his motion for reconsideration of that denial.

                              II. Appeal No. 08-5093

      After the district court denied his § 3582(c) motion and motion for

reconsideration, Mr. Kirtman filed a Fed. R. Civ. P 60(b) motion to reopen his

original judgment of conviction. Mr. Kirtman argued that he had newly

discovered evidence that his trial counsel had obtained an order requiring several

witnesses to testify, but then failed to produce these witnesses or obtain their

testimony. The district court denied the motion as not timely filed and,

alternatively, on the merits, because the evidence was not newly discovered

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within the meaning of Rule 60(b). Mr. Kirtman then filed a motion to reconsider

that denial, which also was denied.

      The district court lacked jurisdiction to consider the claims made in this

motion. Although Mr. Kirtman captioned his motion as a Rule 60(b) motion, and

expressly stated that he did not want it construed as a motion to vacate, set aside

or correct his sentence under 28 U.S.C. § 2255, in fact, the motion consisted

entirely of § 2255 claims.

      Mr. Kirtman previously filed a 28 U.S.C. § 2255 motion to vacate his

sentence, which was denied. United States v. Kirtman, 33 F. App’x 401

(10th Cir. 2002) (denying a certificate of appealability). Before a federal prisoner

may file a second or successive § 2255 motion, he must first seek and obtain an

order from a three-judge panel of the court of appeals authorizing the district

court to consider the motion. 28 U.S.C. §§ 2244(b)(3)(A) & (B), 2255(h).

A district court does not have jurisdiction to decide the merits of a federal

prisoner’s second or successive § 2255 claims unless and until the circuit court

grants the required authorization. See Pease v. Klinger, 

, 764

(10th Cir. 1997) (per curiam).

      “[T]he bar against successive § 2255 petitions” may not be avoided “by

simply styling a petition under a different name.” United States v. Torres,

, 1246 (10th Cir. 2002); see also United States v. Nelson, 

, 1149 (10th Cir. 2006) (“It is the relief sought, not [the] pleading’s title, that

                                          -5-
determines whether the pleading is a § 2255 motion.”). Claims in a Rule 60(b)

motion will be subject to the second or successive § 2255 authorization

requirements if, in substance or effect, the motion asserts or reasserts a federal

basis for relief from the petitioner’s underlying conviction. Gonzalez v. Crosby,

, 531-32 (2005); Spitznas v. Boone, 

, 1215 (10th Cir.

2006).

         Mr. Kirtman’s Rule 60(b) motion clearly asserted a federal basis for relief

from his underlying conviction. Thus, he may not present these claims in the

district court unless he obtains authorization to do so from this court in

accordance with § 2255(h). Mr. Kirtman never sought or obtained such

authorization. Thus, the district court lacked jurisdiction over the matter. See

(“[I]f the prisoner’s pleading must be treated as a

second or successive § 2255 motion, the district court does not even have

jurisdiction to deny the relief sought in the pleading.”). Consequently, in Appeal

No. 08-5093, we vacate the district court’s orders and remand the matter to the

district court with directions to dismiss the Rule 60(b) motion and the related

motion for reconsideration for lack of jurisdiction. See In re Cline, 

, 1251-53 (10th Cir. 2008).

         In Appeal No. 08-5074, we AFFIRM the district court’s denial of the

§ 3582(c) motion and the motion for reconsideration. In Appeal No. 08-5093, we

VACATE the district court’s orders, and REMAND to the district court with

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instructions to dismiss for lack of jurisdiction. Appellant’s motion to file a

supplemental brief is GRANTED.


                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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