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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13041
________________________
D.C. Docket Nos. 5:18-cv-00128-MW-EMT; 5:12-cr-00003-MW-EMT-2
CHARLES A. ARMSTRONG,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(February 5, 2021)
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
LAGOA, Circuit Judge:
Charles Armstrong appeals from an order dismissing his 28 U.S.C. § 2255
habeas petition as second or successive. This appeal asks us to determine whether a
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sentence reduction under 18 U.S.C. § 3582(c) constitutes a new, intervening
judgment for purposes of the bar on second or successive § 2255 motions under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214. We conclude that it does not.
Under AEDPA, before a second or successive § 2255 petition is filed, the
petitioner must first obtain an order from the appellate court authorizing the district
court to consider the petition. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); United States
v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005). Without such authorization, the
district court must dismiss a second or successive § 2255 petition for lack of
jurisdiction. See Williams v. Chatman, 510 F.3d 1290, 1294–95 (11th Cir. 2007).
Here, Armstrong failed to obtain the required certification from this Court before
filing a second § 2255 petition, and the district court dismissed it as unauthorized.
On appeal, Armstrong argues that his second § 2255 habeas petition is not
second or successive because his 2015 sentence reduction constitutes a new and
intervening judgment under Magwood v. Patterson, 561 U.S. 320 (2010). We hold
that a sentence reduction under § 3582(c) does not constitute a new, intervening
judgment for purposes of AEDPA’s bar on a second or successive habeas petition
and that Armstrong was therefore required to obtain an authorization from the
appellate court before filing his second § 2255 habeas petition. Without such
authorization, the district court lacked jurisdiction to entertain the petition, and we
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therefore affirm the district court’s dismissal of Armstrong’s second § 2255 habeas
petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 2, 2012, Armstrong pleaded guilty to three counts of an
indictment: (1) conspiracy to distribute and to possess with the intent to distribute
marijuana, in violation of 21 U.S.C. § 846; (2) possession with the intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii) and 18 U.S.C.
§ 2; and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Under the 2012 Sentencing Guidelines, the
recommended sentencing range was 292 to 365 months. The district court sentenced
Armstrong to 190 months imprisonment on the two drug counts and 120 months
imprisonment on the firearm count, with all terms to run concurrently, followed by
five years supervised release. This Court affirmed Armstrong’s conviction and
sentence on direct appeal. United States v. Armstrong, 546 F. App’x 936 (11th Cir.
2013) (per curiam). On June 4, 2014, Armstrong timely filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255 (the “2014 habeas petition”),
challenging the judgment on the basis of ineffective assistance of both trial and
appellate counsel.
Subsequent to Armstrong’s sentence, the United States Sentencing
Commission issued Amendment 782 to the United States Sentencing Guidelines,
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which reduced the base offense level for Armstrong’s crimes from 135 to 68 months.
Under 18 U.S.C. § 3582(c)(2), a district court may modify a term of imprisonment
“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.” While Armstrong’s 2014 habeas petition was pending, the district
court, pursuant to § 3582(c)(2), sua sponte reduced Armstrong’s sentence based on
Amendment 782 to 152 months on the two drug counts, subject to a mandatory
minimum of 120 months on those two counts, and to 120 months on Count 5, with
all terms to run concurrently. Following the sentence modification, the district court
denied Armstrong’s 2014 habeas petition, and this Court denied a Certificate of
Appealability.
On May 29, 2018, after his 2014 habeas petition was denied, Armstrong filed
another § 2255 habeas petition (the “2018 habeas petition”), challenging the 2015
sentence reduction on the basis of ineffective assistance of both trial and appellate
counsel and arguing that the sentence reduction was a new, intervening judgment.
The district court dismissed without prejudice the 2018 habeas petition as second or
successive and denied Armstrong a Certificate of Appealability. Armstrong then
filed a Notice of Appeal, which this Court construed as a Motion for a Certificate of
Appealability and denied as unnecessary.
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II. STANDARD OF REVIEW
We review de novo whether a § 2255 petition is second or successive under
AEDPA. Stewart v. United States, 646 F.3d 856, 858 (11th Cir. 2011).
III. ANALYSIS
A federal court generally “may not modify a term of imprisonment once it has
been imposed.” 18 U.S.C. § 3582(c). Congress, however, created an exception to
that general rule of finality in § 3582(c)(2). Specifically, a court
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) . . . may reduce the
term of imprisonment, after considering the factors set forth in section 3553(a)
to the extent they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.1
Id.; accord Dillon v. United States, 560 U.S. 817, 824–25 (2010) (discussing
§ 3582(c)(2)).
On appeal, Armstrong argues that his 2018 habeas petition, which the district
court dismissed as unauthorized, is not second or successive under AEDPA because
the district court’s reduction of his sentence pursuant to § 3582(c)(2) constitutes a
new, intervening judgment under Magwood v. Patterson, 561 U.S. 320 (2010).
Before filing a second or successive § 2255 petition, AEDPA requires a petitioner
to first obtain an order from this Court authorizing the district court to consider the
1
Amendment 782 to the Sentencing Guidelines is listed as an amendment covered by the
applicable policy statement issued by the Sentencing Commission. U.S.S.G. § 1B1.10(d).
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petition. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); Holt, 417 F.3d at 1175. Without
such authorization, the district court must dismiss a second or successive § 2255
petition for lack of jurisdiction. See Williams, 510 F.3d at 1295.
In Magwood, the Supreme Court addressed whether AEDPA’s bar on a
second or successive petition applied to a defendant who had filed a § 2254 petition
attacking the original judgment and then filed a second § 2254 petition attacking a
second, intervening judgment. 561 U.S. at 330–31. In that case, a state trial court
sentenced Magwood to death, and Magwood filed a § 2254 petition challenging his
conviction and sentence. 561 U.S. at 323, 326. After a district court conditionally
granted Magwood habeas relief and ordered him to be either released or resentenced,
the state trial court conducted a new sentencing proceeding and again sentenced
Magwood to death. Id. at 326. Magwood then filed another § 2254 petition
challenging the new sentence. Id. at 328. In resolving the issue, the Supreme Court
held that if “there is a ‘new judgment intervening between the two habeas petitions,’
an application challenging the resulting new judgment is not ‘second or successive.’”
Id. at 341–42 (citation omitted) (quoting Burton v. Stewart, 549 U.S. 147, 156
(2007)); see also Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1325 (11th
Cir. 2017) (en banc) (applying Magwood to a § 2254 petition and concluding that a
state consent order eliminating an unlawful component of a petitioner’s sentence
was not a new judgment). Although Magwood addressed petitions under 28 U.S.C.
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§ 2254,2 the Supreme Court has indicated that Magwood also applies to cases
involving § 2255 motions. See Garza v. United States, 562 U.S. 1210 (2011)
(remanding a case involving a § 2255 motion for “further consideration in light of
Magwood”).
Armstrong contends that he is in the same position as the petitioner in
Magwood, i.e., that he has been resentenced and now seeks to challenge that new
sentence on grounds that existed before the new sentence was imposed. Armstrong,
however, is not in the same position as Magwood, who demonstrated in his original
collateral attack that his original sentence violated the Constitution. See Magwood,
561 U.S. at 326. Here, after Amendment 782 to the Sentencing Guidelines reduced
the base offense level for Armstrong’s crimes from 135 to 68 months, the district
court sua sponte modified Armstrong’s sentence pursuant to § 3582(c)(2), which
“provides for the ‘modif[ication of] a term of imprisonment’ by giving courts the
power to ‘reduce’ an otherwise final sentence in circumstances specified by the
Commission.” Dillon, 560 U.S. at 825 (alteration in original) (quoting
§ 3582(c)(2)). As the Supreme Court has recognized, “[b]y its terms, § 3582(c) does
not authorize a sentencing or resentencing proceeding,” but rather “authoriz[es] only
a limited adjustment to an otherwise final sentence and not a plenary resentencing
2
Both §§ 2254 and 2255 prohibit a prisoner from filing a “second or successive” habeas
petition.
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proceeding.” Dillon, 560 U.S. at 825–26. Additionally, this Court has previously
held that a sentencing adjustment pursuant to § 3582(c)(2) “does not constitute a de
novo resentencing. ‘All original sentencing determinations remain unchanged with
the sole exception of the guideline range that has been amended since the original
sentencing.’” United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005)
(alteration adopted) (emphasis omitted) (citation omitted) (quoting United States v.
Bravo, 203 F.3d 778, 781 (11th Cir. 2000)).
Moreover, there are key distinctions between a resentencing and a
§ 3582(c)(2) sentence modification. In Magwood, the sentencing court “conducted
a full resentencing and reviewed the aggravating evidence afresh.” 561 U.S. at 339.
A resentencing thereby introduces the opportunity for the sentencing court to
commit new errors or to repeat the same errors as in the original sentence. In
contrast, § 3582(c)(2) “does not authorize a sentencing or resentencing proceeding,”
but instead, “provides for the ‘modif[ication of] a term of imprisonment’ by giving
courts the power to ‘reduce’ an otherwise final sentence in circumstances specified
by the Commission.” Dillon, 560 U.S. at 825 (alteration in original) (quoting §
3582(c)(2)). Specifically, § 3582(c)(2) only applies when the guideline range “has
subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C.
[§] 994(o),” and, in those cases, it is only the range that is adjusted. Id. at 824, 827
(“[Section] 1B1.10(b)(1) requires the court to begin by ‘determin[ing] the amended
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guideline range that would have been applicable to the defendant’ had the relevant
amendment been in effect at the time of the initial sentencing. . . . ‘[T]he court shall
substitute only the amendments listed . . . for the corresponding guideline provisions
that were applied when the defendant was sentenced and shall leave all other
guideline application decisions unaffected.’” (first alteration in original) (quoting
U.S.S.G. § 1B1.10(b)(1)). As such, when a sentence is modified under § 3582(c)(2),
the district court makes no new findings. Rather, the existing sentence is merely
reduced to account for the subsequent lowering of the sentencing range by the
Sentencing Commission. Dillon, 560 U.S. at 825–26.
Our conclusion here is consistent with precedent from this Court holding that
a § 3582(c) sentence modification does not constitute a new judgment for purposes
of resetting AEDPA’s one-year statute of limitations to file a § 2255 petition. See
Murphy v. United States, 634 F.3d 1303, 1314 (11th Cir. 2011). Murphy involved a
sentence modification under § 3582(c)(1)(B), which allows a court to reduce a
sentence pursuant to Federal Rule of Criminal Procedure 35(b) when a defendant,
after sentencing, provides substantial assistance in the government’s investigation
or prosecution of another person. See Murphy, 634 F.3d at 1307–09; see also §
3582(c)(1)(B); Fed. R. Civ. P. 35(b). This Court considered “[w]hether granting a
defendant a sentence reduction pursuant to Rule 35 constitutes a resentencing that
re-starts the AEDPA time clock, allowing a defendant to collaterally attack his
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original conviction and sentence.” Murphy, 634 F.3d at 1306. We reasoned that
“although a district court may ‘modify’ a ‘sentence to imprisonment’ . . . , a
‘judgment of conviction that includes such a sentence constitutes a final judgment
for all other purposes,’” including AEDPA’s statute of limitations. Id. at 1308–09
(emphasis in original) (quoting § 3582(b)–(c)). We therefore concluded that because
a Rule 35(b) sentence reduction “does not affect the finality of [the] judgment” and
“does not constitute a resentencing where an old sentence is invalidated and replaced
with a new one,” it does not reset AEDPA’s statute of limitations. Id. at 1314.
Although Murphy addressed a different provision of § 3582(c), the express language
of § 3582(b) applies to any sentence modification made “pursuant to the provisions
of subsection (c),” and our conclusion in Murphy that a § 3582(c) modification is
not a “new judgment” in the context of AEDPA’s statute of limitations is equally
applicable in the context of AEDPA’s rule against second or successive petitions.
Our conclusion is also consistent with our sister circuit courts that have
addressed this issue. See White v. United States, 745 F.3d 834, 837 (7th Cir. 2014)
(“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.”); United States v. Jones, 796 F.3d 483, 486 (5th Cir. 2015)
(holding that § 3582(c) allows for “a ‘reduction’ resulting in the ‘modification’ of
an existing sentence, not a full resentencing” and “does not wipe clean the slate of
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habeas applications that [have been] previously filed” (alterations adopted));
Sherrod v. United States, 858 F.3d 1240, 1242 (9th Cir. 2017) (“Because the court
makes only a limited adjustment to the sentence, . . . a § 3582(c)(2) sentence
reduction does not qualify as a new, intervening judgment.”); United States v. Quary,
881 F.3d 820, 822 (10th Cir. 2018) (distinguishing sentence reductions under
§ 3582(c) and the imposition of a new sentence, and holding that “the former do not
qualify as new, intervening judgments”).
IV. CONCLUSION
A sentence reduction pursuant to § 3582(c) does not constitute a de novo
resentencing, but instead effects only a limited adjustment to an otherwise final
sentence. “[A]ll original sentencing determinations remain unchanged with the sole
exception of the guideline range” amended by the Sentencing Commission pursuant
to 28 U.S.C. § 994(o). See Moreno, 421 F.3d at 1220 (emphasis omitted) (quoting
Bravo, 203 F.3d at 781). Because Armstrong’s sentence reduction pursuant to
§ 3582(c) was not a plenary resentencing proceeding, it does not constitute a new,
intervening judgment, and Magwood does not reset the count for purposes of
AEDPA’s bar on second or successive § 2255 motions. Armstrong was therefore
required to obtain permission from this Court authorizing the district court to
proceed on his second or successive § 2255 motion. Because Armstrong failed to
obtain the required certification, the district court correctly determined that it lacked
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jurisdiction to consider the petition. Accordingly, we affirm the district court’s
dismissal of Armstrong’s § 2255 habeas petition.
AFFIRMED.
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