FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER KYLE SHERROD, No. 16-72178
Applicant,
v. ORDER
UNITED STATES OF AMERICA,
Respondent.
Application to File Second or Successive
Motion Under 28 U.S.C. § 2255
Submitted May 24, 2017 *
Filed June 2, 2017
Before: Sidney R. Thomas, Chief Judge, and Barry G.
Silverman and Johnnie B. Rawlinson, Circuit Judges.
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 SHERROD V. UNITED STATES
SUMMARY **
28 U.S.C. § 2255
The 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.
§ 3582(c)(2).
The 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.
The 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 constitutional law.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SHERROD V. UNITED STATES 3
ORDER
In the 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.
In 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.
Although 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
4 SHERROD V. UNITED STATES
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).
Because 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”).
It follows that Sherrod must obtain authorization from
this court to proceed on a second or successive § 2255
motion.
Sherrod has not made a prima facie showing under
§ 2255(h) of:
(1) newly discovered evidence that, if proven
and viewed in light of the evidence as a
whole, would be sufficient to establish by
clear and convincing evidence that no
reasonable factfinder would have found the
movant guilty of the offense; or
SHERROD V. UNITED STATES 5
(2) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable.
Sherrod’s application for authorization is therefore
DENIED. Any pending motions are denied as moot.