[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 19, 2006
No. 03-16364
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 88-00045-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUGENE POWELL GRIFFIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 19, 2006)
Before EDMONDSON, Chief Judge, BLACK and FAY, Circuit Judges.
PER CURIAM:
Eugene Powell Griffin appeals the district court’s denial of his motion to
correct his sentence under former Rule 35(a) of the Federal Rules of Criminal
Procedure. The only issue with arguable merit is Griffin’s contention that his
sentence of life in prison under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(1), is illegal within the meaning of former Rule 35(a) because his
predicate state burglary convictions were vacated after his federal sentence was
imposed. We affirm.
In March of 1989, Griffin was convicted of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g).1 Griffin committed his offenses in
May of 1987, before the Sentencing Guidelines took effect. United States v.
Taylor, 931 F.2d 842, 844 (11th Cir. 1991) (holding Sentencing Guidelines apply
to offenses committed after November 1, 1987). At the time of sentencing, Griffin
had four prior state convictions for violent felonies–three burglary convictions
from 1958, 1965, and 1967, and one murder conviction from 1972–and therefore
qualified for a sentence under the ACCA, 18 U.S.C. § 924(e)(1).2 The district
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Griffin was also convicted of possession of cocaine with the intent to distribute, a
violation of 21 U.S.C. § 841. The district court sentenced Griffin to 20 years’ incarceration to
run consecutively to the sentence imposed for Griffin’s § 922(g) conviction.
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The version of § 924(e)(1) applicable to Griffin’s offense read in pertinent part: “In the
case of a person who violates section 922(g) . . . and has three previous convictions . . . for a
violent felony or a serious drug offense, or both, such person shall be . . . imprisoned not less
than fifteen years . . . .”
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court sentenced Griffin to life in prison, the maximum sentence allowed by
§ 924(e)(1). This Court affirmed Griffin’s conviction and sentence in September
of 1990.
On October 21, 1997, the Superior Court for Fulton County, Georgia,
vacated Griffin’s three prior burglary convictions under Boykin v. Alabama, 89 S.
Ct. 1709 (1969), because the State failed to rebut Griffin’s testimony that his
guilty pleas, entered more than thirty years ago, were not knowingly and
voluntarily made. Subsequently, Griffin, via a 28 U.S.C. § 2255 motion in the
district court, argued he no longer had the requisite three predicate offenses and
sought to reduce his federal life sentence to five-years’ incarceration, the statutory
maximum authorized under § 924(a)(1) for § 922(g) offenders who do not qualify
for the ACCA enhanced sentence. The district court denied the § 2255 motion
because it was successive, and this Court denied Griffin leave to file a successive
motion.3
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Griffin filed a pro se § 2255 motion in January of 1992, at a time when a Rule 35(b)
motion filed by Griffin’s counsel was already pending. Docs. 1 & 4, Exh. Vol. 2. Griffin’s pro
se § 2255 motion asserted various grounds for relief unrelated to the issues in this appeal. The
district court denied both motions in August of 1992. Doc. 5, Exh. Vol. 2. This Court affirmed
without written opinion in March of 1995. Doc. 16, Exh. Vol. 2. In denying Griffin leave to file
a second or successive motion, we left open the possibility Griffin’s pro se § 2255 motion was
denied in a manner that would not render his later § 2255 motion “second or successive.” Doc.
36, Exh. Vol. 4. Because the issue has not been joined, we again express no opinion as to
whether § 2255 is unavailable to Griffin.
3
In August of 2002, Griffin filed a motion to correct his sentence pursuant to
former Rule 35(a), the version of the rule applicable to offenses committed prior to
November 1, 1987. Under former Rule 35(a), a court “may correct an illegal
sentence at any time.” Griffin argued his life sentence under the ACCA is illegal
because it is based on unconstitutionally obtained burglary convictions. The
district court denied the motion because Griffin’s burglary convictions were not
vacated until after his federal sentencing. Griffin appeals.
Whether the district court “had the authority to resentence the defendant
under former Fed. R. Crim. P. 35(a) . . . is a legal question subject to plenary
review.” United States v. Sjeklocha, 114 F.3d 1085, 1087 (11th Cir. 1997). “On
the merits, a Rule 35 motion is reversible on appeal only when the sentence is
illegal or when the trial court’s refusal to reduce the sentence constitutes a gross
abuse of discretion.” United States v. Weaver, 884 F.2d 549, 551 (11th Cir. 1989)
(quotations omitted).
Rule 35(a) “was a codification of existing law and was intended to remove
any doubt . . . as to the jurisdiction of a District Court to correct an illegal sentence
after the expiration of the term at which it was entered.” Heflin v. United States,
79 S. Ct. 451, 455 (1959) (Stewart, J. concurring). “Sentences subject to
correction under [former Rule 35(a)] are those that the judgment of conviction did
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not authorize.” United States v. Morgan, 74 S. Ct. 247, 250 (1954). Illegal
sentences for the purposes of Rule 35(a) include sentences in excess of the
statutory maximum for the offense, sentences imposing multiple punishment for
the same offense, and sentences containing terms that are legally or
constitutionally invalid. See, e.g., Hill v. United States, 82 S. Ct. 468, 472 (1962).
We hold, as did the district court, that former Rule 35(a) is not available as a
means for Griffin to challenge his sentence under the ACCA. It is undisputed that
at the time of sentencing Griffin had at least three prior convictions for violent
felonies. Griffin’s offense of conviction, 18 U.S.C. § 922(g), therefore authorized
the imposition of a life sentence under the ACCA. Griffin has pointed to no
authority, and we have found none, suggesting that former Rule 35(a) may be used
to attack a sentence that was legal when imposed. The proper vehicle to advance
Griffin’s argument for relief is a motion pursuant to 28 U.S.C. § 2255. See United
States v. Walker, 198 F.3d 811, 813-14 (11th Cir. 1999) (holding a federal
prisoner may use § 2255 to challenge, reopen and reduce a federal sentence
enhanced under the ACCA after one or more of the three predicate state court
convictions are later vacated in a state habeas action).
AFFIRMED.
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