                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    December 12, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 JAM ES SHERRILL,

               Petitioner-A ppellant,                    No. 06-3208
          v.                                          District of Kansas
 CO M M AN DA NT, USDB; CO LLEEN                (D.C. No. 02-CV-3368-RDR)
 L. M CG UIRE,

               Respondents-Appellees.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      James Sherrill, a prisoner in military custody, appeals from the district

court’s denial of his Rule 60(b) motion to reopen his habeas corpus action.

Finding no merit to his argument that Brown v. Sanders, 126 S. Ct. 884 (2006),

calls his sentence into question, we affirm.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent except under the doctrines of law of the case, res judicata and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1,
2007).
                                  BACKGROUND

      A general court martial convicted M r. Sherrill of absence without leave,

indecent acts upon a minor, two specifications of indecent liberties upon a minor,

desertion, and disorderly conduct. For these crimes, M r. Sherrill received a

sentence of dishonorable discharge and twelve years incarceration. On appeal,

the Army Court of Criminal Appeals (“ACCA”) dismissed a finding of indecent

liberties on a minor but affirmed the remaining findings and sentence.

      M r. Sherrill filed a petition for habeas corpus in 2002. The district court

denied the petition and this Court affirmed. Sherrill v. Commandant, USDB, 118

F.App’x. 384 (10th Cir. 2004). Following the Supreme Court’s denial of M r.

Sherrill’s petition for certiorari, 544 U.S. 936 (2005), M r. Sherrill filed a motion

under Fed. R. Civ. P. 60(b) in the district court, seeking to reopen his habeas

action and claiming that under Brown v. Sanders, 126 S. Ct. 884 (2006), his

sentence was unconstitutional because it was based on an invalidated sentencing

factor. The court denied the motion, noting that Brown provides “little support”

for M r. Sherrill’s argument and also that the same issue was considered and

denied in the original habeas proceeding. 2 R. Vol. I, Doc. 45, at 2–3.

      M r. Sherrill timely appealed.




      2
       The district court also found moot M r. Sherrill’s request for a stay and
abeyance pending his transfer between correctional facilities. M r. Sherrill does
not argue that this ruling was in error.

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                                   D ISC USSIO N

       “A district court has discretion to grant relief as justice requires under Rule

60(b), yet such relief is extraordinary and may only be granted in exceptional

circumstances.” Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.

2000) (internal quotations marks omitted). W e review a district court’s denial of

a Rule 60(b) motion for abuse of discretion. Id.

       In Brown, the Supreme Court announced a new rule for evaluating the

effect of the invalidation of sentencing factors in capital cases. The Court held

that

       [a]n invalidated sentencing factor (whether an eligibility factor or
       not) will render the sentence unconstitutional by reason of its adding
       an improper element to the aggravation scale in the weighing process
       unless one of the other sentencing factors enables the sentencer to
       give aggravating weight to the same facts and circumstances.

Brown, 126 S. Ct. at 892. M r. Sherrill, reasoning from Brown, argues that

because the ACCA dismissed a finding of indecent liberties upon a minor, his

sentence— which issued before that dismissal— was based upon an invalidated

sentencing factor. He also argues that Brown ushered in a new standard of review

for claims such as his, and that the A CCA’s review of his sentence w as therefore

invalid.

       W e agree with the district court that Brown lends little support to M r.

Sherrill’s argument. Brown concerned the specific jurisprudence surrounding

capital sentencing, and absent guidance from the Supreme Court, we will not

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expand its holding beyond that realm. Accordingly, M r. Sherrill’s claim is

unchanged from the general objection to the ACCA’s reassessment of his sentence

that both the district court and this Court considered and rejected when reviewing

his habeas petition. W e held that “[i]f the military courts have fully and fairly

reviewed Sherrill’s claims, we cannot review them.” Sherrill, 118 F.App’x. at

385 (citing Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir. 2003)). W e found

that the military courts had, in fact, “fully and fairly considered Sherrill’s claims

that he w as denied due process in reassessing his sentence,” and thus held we

could not review the claim. Id. at 386. W e stand by that ruling and thus must

affirm the denial of M r. Sherrill’s Rule 60(b) motion.

                                   C ON CLU SIO N

      The judgment of the U nited States District Court for the D istrict of K ansas

is AFFIRM ED.

                                                      Entered for the Court,

                                                      M ichael W . M cConnell
                                                      Circuit Judge




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