U.S. v. Carter

• Decision Date: 11 September 2007
• Docket Number: No. 05-5717.,05-5717.
• Citation: 500 F.3d 486
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wayne CARTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

500 F.3d 486

UNITED STATES of America, Plaintiff-Appellee, v. Wayne CARTER, Defendant-Appellant.

No. 05-5717.

United States Court of Appeals, Sixth Circuit.

Submitted: May 31, 2007.

Decided and Filed: September 11, 2007.

ON BRIEF: Robert D. Little, Law Offices of Robert Little, Alta Loma, California, for Appellant. S. Delk Kennedy, Jr., Assistant United States Attorney, Nashville, Tennessee, for Appellee. Wayne Carter, Beaumont, Texas, pro se.

Before MOORE and GRIFFIN, Circuit Judges; McKINLEY, District Judge.^*

OPINION

McKINLEY, District Judge.

This matter is before the Court upon Defendant Wayne Carter's appeal of the district court's denial of his Motion to Amend Sentencing pursuant to 18 U.S.C. § 3582. Finding no error, the decision of the lower court is affirmed.

FACTS

Carter was indicted by a federal grand jury sitting in Nashville in December, 2000. Carter was charged with attempted possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841 and 846 and carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Prior to pleading guilty, Carter was advised that his total estimated sentence was 120-131 months. In March of 2001, Carter pleaded guilty to two counts of the Indictment.

Carter's pre-sentence report recommended a two-level enhancement for his leadership role. Carter was sentenced to 70 months on one count and 60 months on another, to run consecutively. This was within the sentencing range that Carter had been advised to expect. No direct appeal was filed, as his right to appeal had been waived in the plea agreement. Carter filed a motion for relief under 28 U.S.C. § 2255 on July 5, 2002, and it was denied on March 10, 2003. Carter appealed that denial, but we denied jurisdiction in June, 2004, based on a lack of timely filed notice of appeal. Carter then filed a motion for relief from judgment under FED.R.CIV.P. 60(b) and the motion was construed as a motion to vacate his sentence pursuant to § 2255.

Carter next filed a Motion for Relief pursuant to 18 U.S.C. § 3582(c)(2), requesting modification of his sentence on March 4, 2005. The district court denied the motion on April 5, 2005. Carter filed a motion for reconsideration, which the district court denied. Carter then filed his Notice of Appeal on April 27, 2005.

JURISDICTION

This is an appeal from the judgment of the District Court after denial of a motion filed pursuant to 18 U.S.C § 3582(c)(2). Jurisdiction is invoked under 28 U.S.C. § 1291.

STANDARD OF REVIEW

This appeal presents a question of law, and is therefore reviewed de novo. See United States v. Tocco, 200 F.3d 401, 428 (6th Cir.2000).

DISCUSSION

Carter appeals the denial of his motion to amend his sentence pursuant to 18 U.S.C. § 3582. 18 U.S.C. § 3582(c)(2) provides a mechanism for the modification of a sentence if the Sentencing Commission changes the relevant sentencing range after a defendant is sentenced. Section 3582 provides:

The court may not modify a term of imprisonment once it has been imposed except that —. . . in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c). Carter's § 3582 motion asserts that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), changed his relevant sentencing range and his sentence should thus be modified.

On appeal, the Government argues that the § 3582 motion should be construed as a second or successive § 2255 motion subject to additional screening requirements. Carter has previously filed both a motion to vacate pursuant to § 2255 and a Rule 60(b) Motion for Relief from judgment. Whether a § 3582 motion must be considered as a second or successive § 2255 motion is a matter of first impression in this Circuit. Before addressing the merits, we will consider whether § 3582 motions should be construed as second or successive § 2255 motions, as the government urges.

1. Gonzalez precedent

In 2005, the Supreme Court held that motions for relief from judgment under FED. R. CIV. P. 60(b) should be construed as second or successive habeas motions in some cases. See Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). The text of FED. R.CIV.P. 60(b) provides relief from judgment in limited circumstances such as mistake, fraud, or a jurisdictional flaw, including some grounds unrelated to the merits of the judgment. FED.R.CIV.P. 60(b). The Gonzalez Court held that a Rule 60(b) motion should be construed as a successive habeas petition when it attacks the substance of the defendant's conviction, rather than the integrity of the judgment that granted or denied relief. Gonzalez, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480. The Eleventh Circuit had previously held that all 60(b) motions should be construed as successive habeas motions, but the Gonzalez Court rejected that holding and adopted a more nuanced approach. The Court found that "when a Rule 60(b) motion attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings," then the motion is not to be construed as a second or successive habeas petition. Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641. When a 60(b) motion attacks the merits of a conviction or sentence, or "if it attacks the federal court's previous resolution of a claim on the merits," it should be construed as a habeas petition. Id.

2. The 60(b) and § 3582 Connection

The Supreme Court in Gonzalez specifically stated that it was construing the application of Rule 60(b) only in habeas cases of state prisoners. Gonzalez, 545 U.S. at 530, n. 3, 125 S.Ct. 2641. Having failed to consider or mention § 3582 motions to amend a sentence, Gonzalez does not mandate that § 3582 motions be construed as second or successive § 2255 motions. But this Court has previously expanded the Gonzalez holding to apply to motions for relief raised pursuant to § 2255, rather than limiting it to the § 2254 petitions addressed in Gonzalez. In re Nailor, 487 F.3d 1018 (6th Cir.2007). For many of the same reasons that we found the reasoning of Gonzalez applicable to the § 2255 motions considered in Nailor, we now find Gonzalez instructive in determining how to best handle § 3582 motions.

There are multiple similarities between Rule 60(b) motions and § 3582 motions. Both provide for relief only in narrow, limited circumstances and are sometimes used as final attempts to seek relief. Rule 60(b) provides relief from judgment on the basis of such issues as mistake, newly discovered evidence, fraud, or voidness. Section 3582(c)(2) provides relief when a defendant is "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). Section 3582 has a more narrow application than Rule 60(b), but both potentially could be used by petitioners to circumvent the screening requirements of § 2255 and attack the merits of their convictions and sentences. Thus, in this situation, the similarities between the two motions for relief prevail.

As was explained in Gonzalez, when a 60(b) motion attacks the petitioner's conviction or sentence, or the federal court's previous resolution of a claim on the merits, the 60(b) motion should be construed as a successive § 2255 motion. This Court incorporated and expanded that holding in Nailor, 487 F.3d 1018. This Court now finds that the same parameters applied to the construction of a 60(b) motion should be applied to § 3582 motions. When a § 3582 motion requests the type of relief that § 3582 provides for — that is, when the motion argues that sentencing guidelines have been modified to change the applicable guidelines used in the defendant's sentencing — then the motion is rightly construed as a motion to amend sentencing pursuant to § 3582. On the other hand, when a motion titled as a § 3582 motion otherwise attacks the petitioner's underlying conviction or sentence, that is an attack on the merits of the case and should be construed as a § 2255 motion. Any second or successive § 2255 motion shall be subjected to the authorization process mandated by In re Sims, 111 F.3d 45 (6th Cir.1997).

We are not alone in concluding that certain motions titled as § 3582 motions should be treated as § 2255 motions in some circumstances. Several circuit courts have chosen to do so, though none has pronounced a generalized rule relating to the interpretation of § 3582 motions as § 2255 motions. See United States v. Maxwell, 210 F.3d 363 (4th Cir.2000); United States v. McNeil, 17 Fed.Appx. 383, 385 (6th Cir.2001); United States v. Savage-El, 81 Fed.Appx. 626, 627 (8th Cir. 2003); United States v. Burkins, 157 Fed. Appx. 55, 56 (10th Cir.2005). Some district courts have interpreted § 3582 motions as § 2255 motions under Gonzalez's precedent as well. See United States v. Copeland, 2006 WL 453464 (N.D.Fla.2006); United States v. Krout, 2006 WL 696643, *3 (S.D.Tex.2006); Gibson v. United States, 2006 WL 2095930 (M.D.N.C.2006).

3. Carter's § 3582 motion

Carter argues that U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), should apply retroactively to his sentence and invalidate his sentence because of an enhancement based on his leadership role. Carter further submits that a failure to apply Booker to his sentence is an ex post facto violation, and the opinion of the district court denying his motion for relief under § 3582 should be...