Submitted May 24, 2017 [*]
Application to File Second or Successive Motion Under 28
U.S.C. § 2255
Before: Sidney R. Thomas, Chief Judge, and Barry G. Silverman
and Johnnie B. Rawlinson, Circuit Judges.
U.S.C. § 2255
panel filed an order denying Christopher Sherrod's
application for authorization to file a second or successive
28 U.S.C. § 2255 motion in a case in which the district
court reduced Sherrod's sentence pursuant to 18 U.S.C.
panel held that a § 3582(c)(2) sentence reduction does
not qualify as a new, intervening judgment; and that under
Magwood v. Patterson, 561 U.S. 320 (2010), Sherrod
must therefore obtain authorization from this court to
proceed on a second or successive § 2255 motion.
panel denied the application for authorization because
Sherrod has not made a prima facie showing under 28 U.S.C.
§ 2255(h) of newly-discovered evidence or a new rule of
context of this application for authorization to file a
second or successive 28 U.S.C. § 2255 motion, we must
decide whether a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) amounts to a new, intervening judgment.
Only if the reduction in Sherrod's sentence qualified as
a new judgment would he be permitted to file a new section
2255 motion without authorization from this court. See
Magwood v. Patterson, 561 U.S. 320, 341-42 (2010)
("where … there is a new judgment intervening
between the two habeas petitions, an application challenging
the resulting new judgment is not second or successive at
all") (internal quotations and citations omitted). We
hold that a sentence reduction under 18 U.S.C. §
3582(c)(2) does not amount to a new judgment.
2013, Sherrod pleaded guilty to one count of possession with
intent to distribute methamphetamine, and in 2014, he was
sentenced. In February 2015, the district court denied
Sherrod's first § 2255 motion on the merits. In
October 2015, the district court issued an order reducing
Sherrod's sentence pursuant to § 3582(c)(2). Sherrod
then filed a motion, which the district court recharacterized
as a § 2255 motion and dismissed for lack of
jurisdiction as an unauthorized second or successive §
2255 motion. In June 2016, Sherrod filed the instant
application for authorization.
a federal court generally "may not modify a term of
imprisonment once it has been imposed, " a court can
reduce the term if it was based on a sentencing range that
the Sentencing Commission later lowered and made retroactive.
18 U.S.C. § 3582(c)(2). "The Supreme Court has
cautioned that the exception to sentencing finality in §
3582(c)(2) is 'narrow [in] scope' and is
'intended to authorize only a limited adjustment to an
otherwise final sentence and not a plenary resentencing
proceeding.'" United States v.
Aguilar-Canche, 835 F.3d 1012, 1017 (9th Cir. 2016)
(alteration in original) (quoting Dillon v. United
States, 560 U.S. 817, 826 (2010)). As the Seventh
Circuit explained, "[t]he penalty goes down, but the
original judgment is not declared invalid." White v.
United States, 745 F.3d 834, 836 (7th Cir. 2014).
the court makes only a limited adjustment to the sentence,
and claims of error at the original sentencing are
"outside the scope of the proceeding authorized by
§ 3582(c)(2), " Dillon, 560 U.S. at 831,
we join our sister circuits in holding that a §
3582(c)(2) sentence reduction does not qualify as a new,
intervening judgment. See United States v. Jones,
796 F.3d 483, 486 (5th Cir. 2015) (holding a sentence
reduction under § 3582(c)(2) "does not wipe clean
the slate of habeas applications that [a prisoner] has
previously filed"); White, 745 F.3d at 837
(holding "Magwood does not reset the clock or
the count, for purposes of § 2244 and § 2255, when
a prisoner's sentence is reduced as the result of a
retroactive change to the Sentencing Guidelines").
follows that Sherrod must obtain authorization from this
court to proceed on a second or ...