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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12521
Non-Argument Calendar
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D.C. Docket No. 0:98-cr-06128-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT MARVIN HARRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 3, 2013)
Before PRYOR, MARTIN and DUBINA, Circuit Judges.
PER CURIAM:
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Appellant Robert Marvin Harris moved in the district court for
post-conviction relief under 18 U.S.C. § 3582(c)(2), 28 U.S.C. § 1651, and Federal
Rule of Civil Procedure 60(b). Harris requested that the district court reduce his
sentence, vacate his convictions, and return his property, which was seized
pursuant to a criminal forfeiture order. The district court denied Harris’s motion in
its entirety, and Harris appeals that decision.
We review de novo a district court’s conclusions about the scope of its legal
authority under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326 (11th
Cir. 2008). We also review de novo whether the district court had subject-matter
jurisdiction to hear a matter. Holston Invs., Inc. B.V.I. v. LanLogistics Corp., 677
F.3d 1068, 1070 (11th Cir.), cert. dismissed, 133 S.Ct. 499 (2012). A defendant
abandons any issue on appeal that he does not “plainly and prominently” address in
his appellate brief. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003).
A district court may modify a term of imprisonment that was based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). A reduction, however, must be “consistent
with applicable policy statements issued by the Sentencing Commission.” Id. The
applicable policy statements, found in U.S.S.G. § 1B1.10, state that “[a] reduction
in the defendant’s term of imprisonment . . . is not authorized under 18 U.S.C.
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§ 3582(c)(2) if . . . [the] amendment . . . does not have the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). Section
1B1.10 contains a list of Amendments which apply retroactively, including
Amendment 591. Id. § 1B1.10(c).
Amendment 591 to the Sentencing Guidelines amended U.S.S.G. § 1B1.2(a)
to insert language directing courts to determine the applicable Chapter Two offense
guideline based on the statutory index for the offense of conviction. U.S.S.G.,
App. C., Amend. 591. The Sentencing Commission stated that it passed the
amendment to clarify a circuit conflict over whether the guideline provisions
governing drug offenses occurring near protected locations were applicable only
when a defendant was convicted of such an offense or whenever the defendant’s
relevant conduct constituted such an offense. Id., Reason for Amendment. The
Commission also noted that there were similar conflicts regarding other guideline
sections. Id. Amendment 607 made Amendment 591 retroactive. Id., Amend.
607.
“Under the law-of-the-case doctrine, an issue decided at one stage of a case
is binding at later stages of the same case.” United States v. Escobar-Urrego, 110
F.3d 1556, 1560 (11th Cir. 1997). The doctrine applies to decisions made by a
district court that were not challenged on appeal when the opportunity to appeal
those decisions existed. Id. There are three exceptions to the doctrine: (1) the later
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decision is based on substantially different evidence; (2) controlling authority has
since made a contrary decision of the law applicable; and (3) the decision was
clearly erroneous and would work a manifest injustice. Id. at 1561 (quoting White
v. Murtha, 377 F.2d 428, 431‒32 (5th Cir. 1967)).
Federal courts are courts of limited jurisdiction and may only hear cases
where authorized by the Constitution and by statute. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994). A district court
lacks the jurisdiction to hear a second or successive § 2255 motion absent
authorization from a court of appeals. 28 U.S.C. §§ 2244(b)(3)(A), and 2255(h);
Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003).
Where a federal prisoner is collaterally attacking his sentence as violating
the Constitution, the proper avenue of relief is 28 U.S.C. § 2255. See 28 U.S.C.
§ 2255(a); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005). Where a
prisoner seeks to raise such a challenge under a different label, the court should
construe the motion as a § 2255 motion, even if it would then be dismissed as
successive. See Holt, 417 F.3d at 1175. The only restriction placed on such a
characterization is that, if the motion would be the litigant’s first § 2255 motion,
the court first must inform the prisoner of the characterization and permit him to
withdraw or amend the motion. See Castro v. United States, 540 U.S. 375, 383,
124 S.Ct. 786, 792 (2003).
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Pursuant to the All Writs Act, 28 U.S.C. § 1651(a), federal courts have the
authority to issue a writ of error coram nobis. United States v. Mills, 221 F.3d
1201, 1203 (11th Cir. 2000). A writ of error coram nobis is available to petitioners
seeking to vacate a conviction for which they are no longer in custody. United
States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002). A petitioner may only obtain
coram nobis relief where: (1) there is and was no other avenue of relief available;
and (2) the alleged error involves a fundamental matter of fact that has not
previously been put in issue and renders the proceeding itself “irregular and
invalid.” Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000).
A defendant may file a direct appeal from a criminal forfeiture order.
Fed.R.Crim.P. 32.2(b)(4)(C). We have previously held that a defendant cannot
challenge a criminal forfeiture order under Rule 60(b). United States v. Mosavi,
138 F.3d 1365, 1366 (11th Cir. 1998). In reaching that conclusion, we reasoned
that Rule 60(b) does not provide for relief from a judgment in a criminal case. Id.
Moreover, 28 U.S.C. § 2255 does not offer relief from the non-custodial features of
a criminal sentence. See United States v. Mamone, 559 F.3d 1209, 1211 (11th Cir.
2009).
To the extent that Harris sought a sentence reduction under § 3582(c)(2), he
invoked in the district court Amendments 591, 715, and 750 to the Sentencing
Guidelines. On appeal, he only mentions Amendment 591, and has therefore
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abandoned his argument regarding the other two amendments. See Jernigan, 341
F.3d at 1283 n.8.
Harris’s claim that Amendment 591 entitles him to a sentence reduction is
barred by the law-of-the-case doctrine. Harris previously sought a § 3582(c)(2)
resentencing based on Amendment 591. The district court, acknowledging that
Harris’s motion was based in part on Amendment 591, denied the motion. Harris
failed to timely appeal that decision, and we eventually dismissed his appeal for a
lack of jurisdiction.
None of the exceptions to the law-of-the-case doctrine applies. See
Escobar-Urrego, 110 F.3d at 1561. As to the first two exceptions, the instant
motion is based on the exact same record as the previous motion, and there has
been no apparent change in controlling authority. Harris cites to Alleyne v. United
States, 570 U.S. ___, 133 S.Ct. 2151 (2013), as a change in authority, but the
Alleyne decision did not address an amendment by the Sentencing Commission and
is inapplicable. See 18 U.S.C. § 3582(c)(2); United States v. Moreno, 421 F.3d
1217, 1220 (11th Cir. 2005) (holding that Amendment 591 only applies to the
selection of the relevant offense guideline).
As to the third exception, no manifest injustice would result from imposing
the law-of-the-case doctrine here, because Amendment 591 affords Harris no
relief. See Escobar-Urrego, 110 F.3d at 1561. Amendment 591 requires a district
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court to select the appropriate offense guideline based on the offense of conviction.
See U.S.S.G., App. C., Amend. 591; Moreno, 421 F.3d at 1219. Here, Harris’s PSI
selected the offense guideline based on the offense of conviction. Harris points to
no specific error in the PSI’s calculation other than the conclusory and immaterial
suggestion that his sentence was based on uncharged conduct. Amendment 591
would, therefore, not change Harris’s guideline calculations and, thus, would not
warrant a sentence reduction. See 18 U.S.C. § 3582(c)(2).
To the extent that Harris’s motion challenged the legality of his conviction
and sentence, the district court should have construed his motion as filed under
§ 2255. See Holt, 417 F.3d at 1175. Because Harris had already filed a § 2255
motion, which was denied on the merits, the district court should have dismissed
Harris’s challenge to his conviction and custodial sentence as a successive § 2255
motion filed without first obtaining leave from this court. See 28 U.S.C.
§§ 2244(b)(3)(A) and 2255(h); Farris, 333 F.3d at 1216.
To the extent that Harris sought relief under Rule 60(b), it is not a
cognizable form of relief from a criminal judgment, including a criminal forfeiture
order. See Mosavi, 138 F.3d at 1366. To the extent that he sought relief in the
form of a writ of coram nobis under 28 U.S.C. § 1651, the district court also
properly denied his motion. Because Harris was and is imprisoned, he has the
opportunity to seek to challenge his custodial sentence under § 2255, and, thus,
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coram nobis relief is unavailable to him even though he must obtain leave to file
another § 2255 motion. See Peter, 310 F.3d at 712. Further, Harris was entitled to
file a direct appeal from the forfeiture order, also rendering coram nobis relief
unavailable to him. See Fed.R.Crim.P. 32.2(b)(4)(C); Alikhani, 200 F.3d at 734.
Because Harris failed to make any claim in his motion that would warrant
any relief from his conviction, sentence, or forfeiture, we conclude that the district
court correctly denied his motion. Accordingly, we affirm the district court’s
denial of Harris’s post-conviction motion.
AFFIRMED.
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