NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3096
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UNITED STATES OF AMERICA
v.
JAMES MABRY, a/k/a James Young, a/k/a Manny
JAMES MABRY,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 4-04-cr-00120-001)
District Judge: Honorable Malcolm Muir
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Submitted Pursuant to Third Circuit LAR 34.1(a)
February 22, 2011
Before: SLOVITER, FISHER and WEIS, Circuit Judges
(Opinion filed March 15, 2011)
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OPINION
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PER CURIAM.
James Mabry appeals from the District Court’s orders denying him relief
under 18 U.S.C. § 3582 and denying his subsequent motion for reconsideration combined
with his motion to amend. For the following reasons, we will dismiss the appeal for lack
of jurisdiction.
I.
In May 2005, Mabry pleaded guilty in the United States District Court for
the Middle District of Pennsylvania to a charge of possession with intent to distribute
more than five grams of crack cocaine, a violation of 21 U.S.C. § 841(a)(1) and
§ 841(b)(1)(B)(iii). The plea agreement included a lengthy recitation of Mabry’s
criminal history—which included numerous state offenses—as well as a waiver of
Mabry’s ―right to challenge any conviction or sentence . . . in any collateral proceeding.‖
Mabry objected to the pre-sentence report (PSR), which found that he qualified for
career-criminal status under United States Sentencing Guidelines §4B1.1; overruling his
objections, the District Court sentenced Mabry to a 210-month prison term on March 3,
2006.
Since that time, Mabry has challenged his conviction and sentence via
numerous collateral attacks, despite the waiver provision of his plea agreement. Two
months after sentencing, he moved to vacate under 28 U.S.C. § 2255, claiming that
defense counsel ―failed to file a requested notice of appeal‖ in response to his ―illegal[ly]
imposed sentence.‖ The District Court held that Mabry’s motion was barred by the
waiver provision. We granted a certificate of appealability and affirmed, holding that
Mabry’s waiver was ―knowing and voluntary‖ and did not work a ―miscarriage of
justice.‖ United States v. Mabry, 536 F.3d 231, 244 (3d Cir. 2008), cert denied, 129 S.
Ct. 2789 (2009). Mabry then began to file challenges to his sentence under 18 U.S.C. §
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3582(c), attacking the crack/cocaine sentencing disparity and the PSR’s calculation of his
criminal history.
The most recent of these efforts is the subject of the instant appeal. On
April 5, 2010, Mabry filed a ―Motion For Adjustment, Modification Of An Imposed
Term Of Imprisonment Pursuant To 18 U.S.C. § 3582(c)(1)(B) Predicated Upon Another
Modifying Statute 28 U.S.C. § 2255‖1 [hereinafter ―April 5 motion‖]. He called for an
―evidentiary hearing to demonstrate a fundamental miscarriage of justice by [the District
Court] during [his] sentencing,‖ claiming that a denial of ―procedural due-process of law‖
led to ―an unjust judgement [sic] of Petitioner being sentenced and misclassified as a
career offender for a violent crime . . . [that he] is actually innocent of.‖ The gist of his
argument, raised earlier in a previous § 3582 motion, was that several of his state
convictions did not qualify as ―crimes of violence‖ for the purpose of his criminal-history
calculation under the Sentencing Guidelines. Mabry also attacked the assignment of
criminal-history points for multiple cases that had been ― onsolidated [sic]‖ in state
court. He requested modification of his sentence to comport with the correct criminal-
history category.
The District Court denied the motion on April 29, 2010, observing that
Mabry sought to ―relitigate the issue of whether he was properly considered a career
offender under the sentencing guidelines,‖ a matter the court had addressed in a previous
1
18 U.S.C. § 3582(c)(1)(B) allows a court, in any case, to ―modify an imposed term of
imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the
Federal Rules of Criminal Procedure.‖
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disposition. Then, on May 12, Mabry filed a ―Motion to Make Additional Finding’s [sic]
and Motion to Alter or Amend Pursuant to Fed. R. Civ. Proc. 52(b) and 59(e), in
Objection’s [sic] to this Court’s Order Rendered on April 29, 2010,‖ [hereinafter ―May
12 motion‖] repeating many of the same arguments. The District Court denied the
motion on June 18, 2010. Mabry filed his notice of appeal on July 7, 2010.
II.
The parties contend that Mabry’s April 5 motion should be treated as a
continuation of his criminal proceeding. See, e.g., United States v. Arrango, 291 F.3d
170, 171 (2d Cir. 2002) (per curiam) (collecting cases). If we agreed, we would be
compelled to dismiss the appeal as untimely, to the extent it was taken from the denial of
his April 5 motion. Under Fed. R. App. P. 4(b)(1)(A)(i), Mabry was required to file his
notice of appeal within fourteen days after the District Court’s entry of judgment—a
period unaffected by his filing of his May 12 motion, see Fed. R. App. P. 4(b)(3)(A)
(listing limited motions that expand the time to file a notice of appeal). He clearly failed
to proceed within the time allowed.
However, we believe that his April 5 motion should be treated as civil, not
criminal, because it was essentially a 28 U.S.C. § 2255 motion.
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
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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.
United States v. Carter, 500 F.3d 486, 490 (6th Cir. 2007). In both of his filings, Mabry
attacks the ―fundamental miscarriage of justice by [the District Court] during his
sentencing on March 3, 2006‖ (emphasis added). Moreover, Mabry’s assertion that his
sentence ―is in violation of the Constitution and Law’s [sic] of the United States‖ would
appear to be a clear invocation of the relief established in 28 U.S.C. § 2255(a).
Therefore, the April 5 motion was more appropriately construed as a § 2255 motion, in
which case the rules governing civil appeals apply.
That being so, Mabry’s May 12 motion was timely filed as per Fed. R. App.
P. 4(a)(4)(A)(ii), (v–vi), and the appeal is timely with regard to both motions. See Fed.
R. App. P. 4(a)(4)(A).
III.
Nevertheless, we will dismiss the appeal for lack of jurisdiction. As
discussed above, Mabry filed a § 2255 motion that was denied on the merits before he
filed the April 5 motion.2 Thus, not only is the April 5 motion really a § 2255 motion, it
is also a second § 2255 motion, over which the District Court lacked jurisdiction because
2
Our determination that the waiver provision of his plea agreement precluded in-depth
review of his claims constituted a disposition on the merits of his earlier petition. Cf.
Carter v. United States, 150 F.3d 202, 205–06 (2d Cir. 1998).
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we did not authorize its filing. The same applies to Mabry’s May 12 motion, which also
seeks to relitigate the merits of his conviction and sentence. See 28 U.S.C. §
2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 149 (2007) (petitioner’s failure to
comply with gate-keeping requirements of § 2244(b) ―deprived the District Court of
jurisdiction to hear his claims‖); Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). A
certificate of appealability is required to appeal from the denial of a § 2255 motion and a
related motion for reconsideration, but because reasonable jurists would all agree that the
District Court lacked jurisdiction, a certificate of appealability cannot issue. See 28
U.S.C. § 2253(c)(1–2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Morris v. Horn,
187 F.3d 333, 341 (3d Cir. 1999). Absent a certificate of appealability, we lack
jurisdiction over this appeal which, accordingly, we will dismiss. United States v.
Cepero, 224 F.3d 256, 267 (3d Cir. 2000) (a ―proper‖ certificate of appealability is
required for this Court to have jurisdiction over a petition).
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