United States v. Smith

── United States v. Smith ── Case No.: 25-4032 Court: Court of Appeals for the Tenth Circuit Date: March 25, 2026 Category: General Appellate Case: 25-4032 Document: 56-1 Date Filed: 03/25/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 25, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 25-4032 (D.C. Nos. 2:16-CR-00020-DN-1 & MARLON ALONZO SMITH, 2:21-CV-00081-DN) (D. Utah) Defendant - Appellant. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________ Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges. _________________________________ Marlon Alonzo Smith seeks to appeal from a district court order dismissing a postjudgment motion for lack of jurisdiction because the district court concluded the motion was, in substance, an unauthorized second or successive 28 U.S.C. § 2255 motion. As we will explain, Smith requires a certificate of appealability (COA) to proceed with this appeal, but he cannot qualify for a COA in these circumstances. We therefore dismiss this proceeding. * This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.  Appellate Case: 25-4032 Document: 56-1 Date Filed: 03/25/2026 Page: 2 I. BACKGROUND & PROCEDURAL HISTORY In 2018, a federal jury found Smith guilty of possessing a controlled substance with intent to distribute. The district court sentenced him to a 180-month prison term. Smith then pursued an unsuccessful direct appeal, see United States v. Smith, 800 F. App’x 658 (10th Cir. 2020) (affirming the district court’s judgment), and an unsuccessful § 2255 motion, see United States v. Smith, No. 21-4130, 2023 WL 1156294 (10th Cir. Jan. 31, 2023) (denying a COA to appeal the district court’s denial of § 2255 relief). Smith has since filed several pro se motions in the district court regarding his conviction or sentence. One of those motions is at issue here, specifically, a motion “to amend and correct misinformation and [add] updated information to his presentence investigation report.” Suppl. R. at 20. We will refer to this as the “PSR motion.” According to the PSR motion, one or more of Smith’s convictions noted in the criminal history portion of his PSR has been expunged. The motion further alleges that the PSR’s narrative about some of those convictions was inaccurate. Smith therefore asked the court to order “the probation office to . . . update records on his [PSR] . . . to reflect his offense level and criminal history category . . . and to provide him a copy of the updated [PSR].” Id. at 21, ¶ 5. The district court construed the PSR motion as, in effect, a second or successive motion for § 2255 relief. Because this court had not authorized that motion, see 28 U.S.C. § 2255(h), the district court dismissed the motion for lack of jurisdiction. Still pro se, Smith filed a notice of appeal. 2  Appellate Case: 25-4032 Document: 56-1 Date Filed: 03/25/2026 Page: 3 An appeal from the type of order in questi