            Case: 16-15787   Date Filed: 02/01/2018   Page: 1 of 6


                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-15787
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket Nos. 1:16-cv-22554-KMM,
                         1:95-cr-00551-KMM-1


DAVID ARIAS,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (February 1, 2018)

Before MARTIN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
               Case: 16-15787    Date Filed: 02/01/2018   Page: 2 of 6


      David Arias appeals the district court’s dismissal of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence. After careful review, we

affirm.

I.    BACKGROUND

      In January 1996, a jury found Arias guilty of two counts of Hobbs Act

robbery, in violation of 18 U.S.C. § 1951(a); one count of conspiracy to commit

Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); one count of possession of

a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g); and two counts

of using and carrying a firearm during and in relation to a crime of violence—

specifically, Hobbs Act robbery—in violation of 18 U.S.C. § 924(c). The district

court sentenced Arias to a total of 408 months’ imprisonment. Arias appealed, and

we affirmed.

      In September 2000, Arias filed his first motion to vacate, set aside, or correct

his sentence under 28 U.S.C. § 2255. The district court denied that motion with

prejudice.

      In February 2001, Arias filed a motion to modify his sentence under

18 U.S.C. § 3582(c)(2) and Amendment 599 to the Sentencing Guidelines. The

district court summarily denied that motion. On appeal from that denial, the

Government conceded that it had misadvised the district court that

Amendment 599 did not apply to Arias, when in fact, it did. In light of that


                                          2
                Case: 16-15787        Date Filed: 02/01/2018       Page: 3 of 6


concession, we could not determine whether the district court had considered the

effect of Amendment 599 on Arias’s sentencing range when it summarily denied

his motion. Accordingly, we vacated the sentences imposed for Arias’s § 1951(a)

and § 922(g) convictions and remanded the case to the district court.1

       On remand, the district court recalculated Arias’s guideline range and held a

hearing, after which it imposed the same sentences that it had previously imposed,

based on its assessment of the 18 U.S.C. § 3553(a) factors. The district court did

not, however, enter a new judgment. Arias appealed. We affirmed the district

court’s sentencing decision, but remanded with instructions for the district court to

enter a formal judgment re-imposing its original sentences as to Arias’s § 1951(a)

and § 922(g) convictions. The district court entered an amended judgment on

April 11, 2003.

       In June 2004, Arias filed another § 2255 motion. The district court

dismissed that motion as impermissibly successive under 28 U.S.C. § 2244(b).

Arias did not appeal that decision.

       In June 2016, Arias filed in this Court two applications for leave to file a

second or successive § 2255 motion in the district court. In both, Arias alleged that

the Supreme Court’s decision in Johnson v. United States, 576 U.S. ___, 135 S. Ct.

2551 (2015), rendered his § 924(c) convictions unconstitutional. We denied the

1
  We affirmed the district court’s denial of Arias’s § 3582(c)(2) motion with respect to the
sentences imposed for his § 924(c) convictions.
                                                3
                Case: 16-15787        Date Filed: 02/01/2018       Page: 4 of 6


applications on the ground that Arias’s proposed Johnson claim was foreclosed by

our decision in In re Saint Fleur, 824 F.3d 1337 (11th Cir. 2016), where we held

that Hobbs Act robbery qualifies as a crime of violence under § 924(c)’s use-of-

force clause.

       While the above applications were pending before this Court, Arias filed the

present § 2255 motion in the district court. The district court dismissed the motion

as impermissibly successive. This is Arias’s appeal from that dismissal.

II.    DISCUSSION

       The district court dismissed Arias’s § 2255 motion as impermissibly

successive. Ordinarily, we review a district court’s dismissal of a § 2255 motion

as impermissibly successive de novo. McIver v. United States, 307 F.3d 1327,

1329 (11th Cir. 2002). However, Arias does not challenge the district court’s

conclusion that his § 2255 motion was impermissibly successive.

       Because Arias does not argue that the district court erred in its determination

that the present § 2255 motion is impermissibly successive,2 he has abandoned any

challenge to the one ground on which the district court dismissed that motion. 3 See


2
  Indeed, Arias’s arguments on appeal assume that the district court correctly determined that the
present § 2255 motion was successive, such that Arias was required to obtain this Court’s
permission to file it.
3
   Instead of challenging the district court’s reason for dismissing the present motion, Arias,
through counsel, argues that we should have granted his June 2016 applications for permission to
file a second or successive § 2255 motion. He contends that (1) In re Saint Fleur is not
precedential; (2) In re Saint Fleur was wrongly decided; and (3) Johnson invalidated the
                                                4
                 Case: 16-15787        Date Filed: 02/01/2018        Page: 5 of 6


Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–83 (11th Cir. 2014)

(determining that the appellants had abandoned any challenge to the district court’s

alternative bases for ruling against them by failing to brief those issues on appeal,

and affirming the district court’s judgment without addressing those issues that the

appellants did raise); see also Hamilton v. Southland Christian Sch., Inc., 680 F.3d

1316, 1318–19 (11th Cir. 2012) (“A passing reference to an issue in a brief is not

enough, and the failure to make arguments and cite authorities in support of an

issue waives it.”); Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001)

(deeming an issue abandoned where the appellants made a single reference to the

issue in their brief and did not discuss the district court’s analysis of that issue).

Therefore, the district court’s judgment is due to be affirmed. 4



risk-of-force clause in 18 U.S.C. § 924(c)(3)(B). The only relief he requests is for us to grant
him “leave for his successive application” and to “remand this case for consideration on the
merits by the district court.” To the extent that Arias asks us to reconsider our denial of his June
2016 applications, such request is procedurally improper, as it is the district court’s dismissal
order, and not our previous order denying the June 2016 applications, that is before us in this
appeal. Moreover, § 2244(b) prohibits us from entertaining a motion for reconsideration of an
order denying an application for leave to file a second or successive § 2255 motion. See
28 U.S.C. § 2244(b)(3)(E); 11th Cir. R. 22-3(b); In re Bradford, 830 F.3d 1273, 1276 (11th Cir.
2016) (noting that we have repeatedly read § 2255(h) to incorporate the § 2244(b)(3)(E) bar on
petitions for rehearing).
4
  To the extent that Arias’s brief might plausibly be construed as yet another application for
permission to file a second or successive § 2255 motion, we would be required to dismiss such
application because Arias previously raised the same Johnson claim in his June 2016
applications. See In re Bradford, 830 F.3d at 1277–79; see also In re Baptiste, 828 F.3d 1337,
1340 (11th Cir. 2016) (explaining that a prisoner cannot avoid § 2244(b)(3)(E)’s prohibition of
petitions for rehearing by filing “what amounts to a motion for reconsideration under the guise of
a separate and purportedly ‘new’ application when the new application is the same as the old
one”).
                                                 5
                Case: 16-15787      Date Filed: 02/01/2018      Page: 6 of 6


III.   CONCLUSION

       For the reasons set forth above, we AFFIRM the judgment of the district

court.5




5
  Because Arias abandoned any challenge to the district court’s determination that his § 2255
motion was impermissibly successive, this Court need not determine whether the motion was, in
fact, impermissibly successive in light of the April 11, 2003, amended judgment.
                                              6
