                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        September 27, 2012
                                     TENTH CIRCUIT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
v.                                                           No. 12-8020
                                                   (D.C. No. 2:05-CR-00078-ABJ-3)
LEVI A. WILSON,                                               (D. Wyo.)

             Defendant - Appellant.


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
v.                                                           No. 12-8026
                                                   (D.C. No. 2:05-CR-00078-ABJ-3)
LEVI A. WILSON,                                               (D. Wyo.)

             Defendant - Appellant.




                             ORDER AND JUDGMENT*


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


      *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
       Levi A. Wilson, a federal prisoner proceeding pro se, is a busy man; he has

recently filed three appeals with this court, all relating to one conviction. He pled guilty

to cocaine trafficking charges pursuant to a binding plea agreement. See Fed. R. Civ. P.

11(c)(1)(C). He appeals from the district court’s denial of the latest of his attempts to

modify his sentence under 18 U.S.C. § 3582(c).1 We affirm.

                                      BACKGROUND

       This is Wilson’s third appeal from denials of collateral relief from the agreed

sentence. In 2005, he pled guilty to the charge of conspiracy Count I: to traffic in

cocaine base (more commonly known as “crack cocaine” or “crack”), and to use a place

for the manufacture, distribution, and use of crack cocaine, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A), 856(a)(1), (b), and 846.2 (Vol. II at 189.) Wilson agreed to plead



       1
           In pertinent part, 18 U.S.C. § 3582(c)(2) states:

       [I]n 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), upon
       motion of the defendant . . ., the court may reduce the term of
       imprisonment, after considering the factors set forth in section 3553(a) . . . .
       2
           Section 841(b) mandates a 10-year to life imprisonment sentence for convictions
involving certain quantities of drugs. It also provides: “If any person commits such a
violation after a prior conviction for a felony drug offense has become final, such person
shall be sentenced to a term of imprisonment which may not be less than 20 years and not
more than life imprisonment . . . .” Section 851 requires the government to file a notice
that it intends to apply the § 841 enhancement and to “stat[e] in writing the previous
convictions to be relied upon.” The government filed its § 851 notice on August 8, 2005.
United States v. Wilson, 421 Fed. App’x 822, 823 (10th Cir. 2010), cert denied, 132 S.
Ct. 370 (2011) (Wilson II).


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guilty to the single count charged in exchange for a 20-year sentence of imprisonment

followed by 10 years of supervised release. He did not file a direct appeal but in 2006, he

filed a 28 U.S.C. § 2255 motion. The district court denied relief and we denied a

Certificate of Appealability. United States v. Wilson, 337 Fed. App’x 747, 748 (10th Cir.

2009) (Wilson I). We concluded his claims of actual innocence, as well as his challenges

to the voluntariness of his plea, the ineffectiveness of his counsel, and the

constitutionality of his sentence, were unsupported by law or facts.

       In 2010, Wilson filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his

sentence. United States v. Wilson, 421 Fed. App’x 822, 824 (10th Cir. 2010), cert

denied, 132 S. Ct. 3701 (2011) (Wilson II). He argued for a sentence reduction based on

Amendment 706 to the Sentencing Guidelines. Alternatively, he contended his sentence

violated the Eighth Amendment to the United States Constitution. The district court

rejected both arguments. First, it concluded it lacked the authority to reduce Wilson’s

sentence under 18 U.S.C. § 3582(c)(2) because his sentence reflected the statutory

mandatory minimum under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii) and 851. Second, it

determined the Eighth Amendment claim was not cognizable under 18 U.S.C. § 3582(c).

Id. at 824-25. We affirmed, stating: “As Amendment 706 to the Sentencing Guidelines

did not reduce the statutorily defined mandatory minimum, the district court necessarily

lacked the authority to reduce Wilson’s sentence pursuant to 18 U.S.C. § 3582(c)(2).” Id.

at 825. We also concluded Wilson’s additional argument—that the court’s sentence was

procedural error—was properly the subject of a [second or subsequent] § 2255 motion.

Id.

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       On February 16, 2012, Wilson moved to reduce his sentence based on the

Supreme Court’s decision in Freeman v. United States, 131 S. Ct. 2685, 2693 (2011)

(applying Amendment 750 to the Sentencing Guidelines in a Rule 11 plea context),3 and

the Fair Sentencing Act of 2010, Pub. L. No. 111-220, (FSA) (increasing the threshold

quantities of narcotics which trigger mandatory-minimum sentences), effective

November 1, 2011. The district court rejected these arguments because, as we stated in

Wilson II, his previous drug conviction required a 20-year, mandatory-minimum

sentence. 421 Fed. App’x at 825; see 21 U.S.C. § 841(b)(1)(A). Thus, his sentence was

not based on the Guidelines but on a statutory minimum. Second, the increased drug

quantities necessary to apply mandatory minimum under the FSA, which became

effective after Wilson’s sentencing, did not affect the minimum sentence required under

§ 841(b). The FSA would not apply to Wilson because he pled to possessing and

distributing quantities which exceeded even its increased levels. (Appeal No. 12-8020.)

       On March 12, 2012, Wilson filed a “Motion to Enforce the Plea Agreement in

Reply to Government’s Opposition to Defendant’s Motion for Reduction of Sentence.”

In this motion/reply, he argued there was no § 841 enhancement associated with his plea

agreement, the prosecution had agreed the minimum sentence was 10 years, and the

district court impermissibly interfered with the plea discussions by suggesting the

enhancement applied. The government moved to dismiss the motion/reply because it was

       3
          In Freeman, a plurality of the Supreme Court held “the district court has
authority to entertain § 3582(c)(2) motions when sentences are imposed in light of the
Guidelines, even if the defendant enters into an 11(c)(1)(C) agreement.” Freeman, 131
S. Ct. at 2693.

                                           -4-
not related to the motion to reduce his sentence. Rather, it was a “straightforward

challenge to the legality of his conviction and sentence” and “[a]s such, it constitute[d] a

second or successive 2255 motion.” (Vol. II at 185.) The court agreed, and determined

the motion did not involve new evidence or a new, retroactive constitutional rule of law.

(Id. at 192.); see 28 U.S.C. 2255(h). As a result, it dismissed the motion. (Appeal No.

12-8026.)

                                       DISCUSSION

       Wilson’s current appellate briefs in Appeal Nos. 12-8020 and 12-80264 abandon

the sentence reduction arguments made to the district court. Instead, he contends the

court erred when it interfered in the plea negotiations by applying a 20-year mandatory

minimum. He claims the prosecutor had forgotten the § 851 notice had been filed and,

therefore, when the plea agreement was reached, it contemplated a 10-year mandatory

minimum sentence. Even if this argument had been timely made to the district court, it

fails for several reasons. First, it is foreclosed by our decision in Wilson II, which held

the plea agreement was valid and based upon a 20-year statutory minimum sentence. 421

Fed. App’x at 825 (“The record, however, indicates that the Rule 11(c)(1)(C) plea

agreement did include consideration of Wilson’s prior felony conviction in his sentence

computation.”). Second, the argument is properly the subject of a § 2255 motion. See


       4
         Appeal Nos. 12-8020 and 12-8026 have been consolidated. On February 21,
2012, Wilson filed a motion for the dismissal of his indictment and alleged that, because
there was no non-governmental co-conspirator, the court was without jurisdiction. The
denial of this motion was the subject of another appeal, Appeal No. 12-8036, which was
dismissed on August 8, 2012, “for lack of prosecution”; the mandate was issued
August 28, 2012.

                                            -5-
United States v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003) (“An argument that a

sentence was incorrectly imposed should be raised on direct appeal or in a motion to

vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.”).

       Because Wilson has already filed one unsuccessful § 2255 motion, he must

receive certification from this court before filing another. 28 U.S.C. § 2255(h). A second

or successive motion is certified only when “newly discovered evidence” clearly and

convincingly establishes that no “reasonable fact finder” would find Wilson guilty of the

offense or Wilson demonstrates the Supreme Court has iterated a new, retroactive rule of

Constitutional law “that was previously unavailable.” Id. Wilson has not attempted to

meet this standard and cannot do so.

       We AFFIRM the district court’s denial of Wilson’s motion for reduction of

sentence and its dismissal of his motion to enforce his plea agreement.

       The district court permitted Wilson to proceed on appeal without the payment of

fees. His motion to this court for the same relief is dismissed as moot.

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




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