United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten, Judge
matter is before the court on two motions by defendant Andre
Davis, who in 2009 was found guilty of conspiracy to
distribute cocaine, possession with intent to distribute a
controlled substance, and interstate travel in aid of a
racketeering enterprise.His conviction and sentence were
affirmed on appeal by the Tenth Circuit (Dkt. 209). His
subsequent motion for relief under 28 U.S.C. § 2255 was
denied by this court in 2012 (Dkt. 213). The Tenth Circuit
dismissed Davis's appeal from that denial on the merits.
first motion now before the court, Davis asks for jail time
credit pursuant to U.S.S.G. 5G1.3(b). In particular, he
argues that a reduction of his sentence by 16 months would be
consistent with the court's “true intent” at
the time of sentencing. (Dkt. 232, at 3). In the second
motion, he also invokes his belief that that his sentence
should be reduced by 16 months, and asks the court write to
the Bureau of Prisons (BOP) that he should receive the jail
time credit. Alternatively, he asks that the court modify his
Presentence Report (PSR) to document his prior drug abuse so
as to permit him to participate in a BOP program. (Dkt.
court has reviewed Davis's requests and finds that the
relief cannot be granted. Guideline 5G1.3(b) does not
authorize the modification of a sentence after it has been
imposed. United States v. Watson, 2019 WL 447314, at
*1 n. 4 (D. Maine, Feb. 5, 2019). As the Tenth Circuit
observed in United States v. Tetty-Mensah, 665
Fed.Appx. 687, 690 (10th Cir. 2016), the “Sentencing
Guidelines” - specifically including § 5G1.3 -
“are not jurisdiction-conferring statutes permitting
[a] court to modify a sentence.” The court lacks
jurisdiction for an additional reason. The defendant appears
to be currently incarcerated in Ohio. Recently, the Tenth
Circuit addressed the issue in this very case within the last
year, when it denied Davis's request for permission to
file a new § 2255 motion on various issues, including
the claim that the BOP had refused to give him appropriate
jail-time credit. The court concluded that such a claim was
not justified under § 2255, observing that the jail time
credit claim “would be more properly brought under 28
U.S.C. § 2241.” (Dkt. 231, at 2). At the same
time, the court explicitly quoted its decision in
Bradshaw vs. Story, 86 F.3d 164, 166 (10th Cir.
1996) that “[a] petition under . . . § 2241
attacks the execution of a sentence rather than its validity
and must be filed in the district where the prisoner is
court lacks jurisdiction to directly order the relief sought
by amending Davis's sentence, it also has no basis for
sending a letter to the BOP to direct the same result.
Finally, the court finds no authority for altering the PSR.
See United States v. Fykes, 733 Fed.Appx. 950, 952
(10th Cir. 2018) (finding such a motion to modify a PSR after
judgment is properly dismissed for lack of jurisdiction).
See United States v. Cosgrove, 2008 WL 5119679, at
*1 (D. Kan. Nov. 26, 2008) (under Fed.R.Crim.Pr. 32(f)(1) and
(i)(1)(D), any objection to PSR must be made within 14 days
of its receipt, which may be extended “for good cause
… at any time before sentence is imposed”).
Under Rule 36, the PSR may only be corrected “clerical
error[s].” See United States v. Torres, 2018
WL 2016306, at *1 (E.D. N.C. April 30, 2018) (post-judgment
request to modify a PSR “to add substantive information
or a recommendation for residential drug treatment” not
a clerical error under Rule 36).
ACCORDINGLY ORDERED this 19th day of March, 2019, that
defendant's Motions for Relief (Dkt. 232, 233) are
dismissed for lack of jurisdiction.
 In violation, respectively, of 21
U.S.C. § 846, 21 U.S.C. § 841(a)(1), and 18 U.S.C.
§ 1952(a)(3). He was sentenced to a 240 month term of
imprisonment. (Dkt. 172).
 In the motion, Davis complains as well
about the enhancement of his sentence under § 21 U.S.C.
§ 851. The propriety of the enhancement was addressed
both in defendant's direct appeal in the defendant's
previous § 2255 (Dkt. 222), and cannot be renewed again
in the absence of leave from the Tenth Circuit for the filing
of a successive § 2255 motion.
 See United States v. Stevens,
2010 WL 145890, at *4 (D. Me. Jan. 8, 2010) (citing
Miller v. United States, 564 F.2d 103, 105 (1st
A sentencing court only has jurisdiction over
post-conviction petitions filed pursuant to 28 U.S.C. §
2255. Post-conviction petitions challenging conditions of
confinement, including the manner of execution of sentence,
and brought pursuant to 28 U.S.C. § 2241, are not within
the jurisdiction of the sentencing ...