                                                                                     FILED
                                                                         United States Court of Appeals
                                        PUBLISH                                  Tenth Circuit

                      UNITED STATES COURT OF APPEALS                           February 6, 2018

                                                                             Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                               Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 17-3193
                                                   (D.C. Nos. 5:14-CV-04003-SAC &
JAMES WARDELL QUARY,                                    5:95-CR-40083-SAC-8)
                                                               (D. Kan.)
      Defendant - Appellant.
                      _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY
                    _________________________________

Before TYMKOVICH, Chief Judge, LUCERO and HARTZ, Circuit Judges.
                 _________________________________

PER CURIAM.
                         _________________________________

       James Wardell Quary, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) to challenge the district court’s dismissal of his motion for relief

under 28 U.S.C. § 2255 for lack of jurisdiction. We deny a COA and dismiss this matter.

       After a jury convicted Quary of multiple drug offenses, he received a life sentence.

He also received a consecutive term of 60 months’ imprisonment for a firearm offense.

See 18 U.S.C. § 924(c). His convictions and sentences were affirmed on direct appeal.

See United States v. Quary, 188 F.3d 520, 1999 WL 546999 (10th Cir. July 28, 1999)

(unpublished table decision).
       After the district court denied his first § 2255 motion, we denied a COA. See

United States v. Quary, 60 F. App’x 188 (10th Cir. 2003). In August 2015, the district

court granted Quary’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) and

reduced his life sentence to a 360-month sentence, resulting in a total sentence of

420 months’ imprisonment including the consecutive term for the firearm offense.

       Almost two years later, Quary filed another § 2255 motion. He argued that the

motion was not second or successive because his sentence reduction constituted a new

judgment. The district court rejected this argument—noting the absence of Tenth Circuit

authority on the issue but also the exclusive line of precedent from other circuits—and

determined that Quary’s motion was a second or successive motion for which he needed

authorization. Quary now seeks a COA to appeal that ruling, arguing, as he did in the

district court, that his § 2255 motion is not second or successive due to his intervening

sentence reduction.1

       To establish his entitlement to a COA, Quary must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district

court denies a § 2255 motion on procedural grounds, a COA may issue only if “the

prisoner shows, at least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and . . . whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).




       1
        Because we conclude that the district court did not have jurisdiction to consider
Quary’s motion, we need not address his argument that he is entitled to equitable tolling.
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       Not every § 2255 motion filed second in time qualifies as “second or successive”

under the Antiterrorism and Effective Death Penalty Act; “[t]he Supreme Court has

described the phrase as a term of art.” Stanko v. Davis, 617 F.3d 1262, 1265 n.2

(10th Cir. 2010) (internal quotation marks omitted). If “there is a new judgment

intervening between the two habeas petitions, an application challenging the resulting

new judgment is not second or successive.” Magwood v. Patterson, 561 U.S. 320,

341-42 (2010) (citation and internal quotation marks omitted).

       This court has not addressed the precise issue of whether an order reducing a

sentence under § 3582(c)(2) constitutes a new, intervening judgment for purposes of

determining whether a § 2255 motion is second or successive. However, the Supreme

Court has made clear that § 3582(c)(2) establishes a narrow exception to the rule that “[a]

federal court generally may not modify a term of imprisonment once it has been

imposed.” Dillon v. United States, 560 U.S. 817, 819 (2010) (internal quotation marks

omitted). “[A] district court proceeding under § 3582(c)(2) does not impose a new

sentence in the usual sense.” Id. at 827. Rather, by its plain language, the statute

“authorize[s] only a limited adjustment to an otherwise final sentence and not a plenary

resentencing proceeding.” Id. at 826.

       In United States v. Piper, 839 F.3d 1261, 1266 (10th Cir. 2016), and United States

v. Verdin-Garcia, 824 F.3d 1218, 1222 (10th Cir. 2016), we applied Dillon in deciding

that a district court does not abuse its discretion when it denies a sentence reduction

under § 3582(c)(2) without addressing a prisoner’s policy-based arguments. We noted

that in a sentencing proceeding, a court is required to explain its reasons for the sentence

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it imposes, see 18 U.S.C. § 3553(c), yet in a sentence-reduction proceeding, a court is

required merely to consider the relevant factors, see id. § 3553(a), whether or not it grants

a reduction. Piper, 839 F.3d at 1267. Thus, with respect to motions for a sentence

reduction, we found “no basis to impose upon the district court a requirement to address

every nonfrivolous, material argument raised by the defendant” in such proceedings.

Verdin-Garcia, 824 F.3d at 1222. The established principle of distinguishing sentence

reductions from sentencings in this court supports our holding today that the former do

not qualify as new, intervening judgments.

       Other circuits that have addressed this issue have uniformly reached the same

conclusion. See, e.g., Sherrod v. United States, 858 F.3d 1240, 1242 (9th Cir. 2017);

United States v. Jones, 796 F.3d 483, 487 (5th Cir. 2015); White v. United States,

745 F.3d 834, 837 (7th Cir. 2014).

       In White, the Seventh Circuit distinguished White’s § 3582(c) sentence reduction

from Magwood’s resentencing. 745 F.3d at 836. White requested and received a

sentence reduction after the Sentencing Commission adopted a retroactive amendment

cutting the offense levels for crack-cocaine offenses (as did Quary), while Magwood was

sentenced anew after demonstrating in his initial collateral attack that his original

sentence violated the Constitution. Id. at 835-36. The White court observed that at a

resentencing, a district judge may receive evidence and reopen issues decided in the

original sentencing before holding a hearing and pronouncing a new sentence. Id. at 836.

By contrast, a court granting a sentence reduction “takes as established the findings and

calculations that led to the sentence and changes only the revised Guideline, leaving

                                              4
everything else the same.” Id. In other words, “[t]he penalty goes down, but the original

judgment is not declared invalid.” Id. Therefore, the Seventh Circuit concluded,

“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.” Id. at 837.

       In Jones, the Fifth Circuit noted that Magwood does not define the term “new

judgment” but held that Jones “received a reduced sentence [under § 3582(c)(2)], not a

new one.” 796 F.3d at 485. The court determined that the sentence-reduction procedure

“does not in any way resemble a full resentencing” because it “leaves undisturbed the

findings and calculations that formed the recommended sentencing range, changing only

the revised Guideline.” Id. at 486.

       And in Sherrod, the Ninth Circuit reasoned that a sentence reduction under

§ 3582(c)(2) is not akin to a resentencing, stating that “[t]he 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

plenary resentencing proceeding.” 858 F.3d at 1242 (brackets and internal quotation

marks omitted). Noting the decisions from other circuits discussed above, the Ninth

Circuit decided it would “join our sister circuits in holding that a § 3582(c)(2) sentence

reduction does not qualify as a new, intervening judgment.” Id.

       The rationale of these opinions is persuasive. Moreover, given this court’s

precedents distinguishing sentence reductions from sentencings as well as the uniform



                                             5
rejection of Quary’s argument in other circuits, we conclude that jurists of reason would

not find the district court’s procedural ruling debatable.

       Accordingly, we deny a COA. Quary’s motion for leave to proceed on appeal

without prepayment of costs or fees is granted.




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