                                                          FILED
                                              United States Court of Appeals
                   UNITED STATES COURT OF APPEALS     Tenth Circuit

                         FOR THE TENTH CIRCUIT                       August 14, 2020
                       _______________________________________
                                                                   Christopher M. Wolpert
                                                                       Clerk of Court
    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 20-5023
    v.                                        (D.C. No. 4:02-CR-00088-CVE-1)
                                                        (N.D. Okla.)
    EFREM ZEMBLISH HARRIS,

          Defendant - Appellant.
                     _________________________________________

                           ORDER AND JUDGMENT *
                      __________________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
               ___________________________________________

         Mr. Efrem Zemblish Harris, a federal prisoner, moved for a sentence

reduction under 18 U.S.C. § 3582(c)(2) and § 404(c) of the First Step Act

of 2018. The federal district court dismissed his motion for lack of

jurisdiction, reasoning that the First Step Act prohibited relief because the




*
      We conclude that oral argument would not materially help us in
deciding the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
So we have decided the appeal based on the record and the parties’ briefs.

      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate under Fed. R. App. P. 32.1(a) and 10th Cir. R.
32.1(A).
court had already considered the merits and rejected two similar motions

by Mr. Harris.

     Mr. Harris appeals, arguing that the district court abused its

discretion. We reject Mr. Harris’s arguments because the district court had

considered a similar motion and rejected it on the merits.

1.   Our review is de novo.

     Motions for sentence reduction under the Fair Sentencing Act are

typically reviewed for abuse of discretion. See United States v. Boulding,

960 F.3d 774, 784 (6th Cir. 2020); United States v. Galbreath, 506 F.

App’x 736, 737 (10th Cir. 2012) (unpublished). But here the district

court’s dismissal for lack of jurisdiction was premised on statutory

interpretation, so our review is de novo. Ausmus v. Perdue, 908 F.3d 1248,

1252 (10th Cir. 2018).

2.   Mr. Harris has previously sought relief under § 404 of the First
     Step Act.

     The First Step Act prohibits courts from reviewing motions for

sentence reduction “if a previous motion made under this section to reduce

the sentence was, after the date of enactment of this Act, denied after a

complete review of the motion on the merits.” First Step Act, Pub. L. 115-

391, 132 Stat. 5194, 5222 (2018).

     Mr. Harris previously filed two motions for sentence reduction under

18 U.S.C. § 3582(c)(2). But Mr. Harris argues that he remains eligible


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because he didn’t base those motions on § 404 of the First Step Act.

Appellant’s Opening Br. at 10. We reject this argument.

     Mr. Harris “based [his first motion] on Congress making the Fair

Sentencing Act of 2010, to be applied retroactively to those that were

sentenced before then and 18 U.S.C. § 3582(c)(2).” Dkt. #212 at 3; see

United States v. Boulding, 960 F.3d 774, 777 (6th Cir. 2020) (“Section 404

of the First Step Act made Sections 2 and 3 of the Fair Sentencing Act

retroactive for defendants who were sentenced before August 3, 2010.”).

So the district court evaluated Mr. Harris’s first motion under the First

Step Act. Dkt. #214 at 2. The same is true of Mr. Harris’s second motion

for a sentence reduction. Dkt. #215 at 1. So Mr. Harris based both prior

motions on § 404 of the First Step Act.

3.   The district court provided complete review of Mr. Harris’s
     previous motions and denied them on the merits.

     Mr. Harris argues that his prior motions haven’t received complete

review on their merits. Appellant’s Opening Br. at 9. We disagree,

concluding that Mr. Harris’s previous motions were denied on the merits.

      The district court denied Mr. Harris’s first motion after determining

that Mr. Harris was ineligible for a sentence reduction because

      •     his sentence was not based on a sentencing range and

      •     his sentence was based on a conspiracy to distribute powder
            cocaine and cocaine base (rather than just cocaine base).



                                      3
For both reasons, the district court concluded that Mr. Harris was not

entitled to a reduction and denied his first motion for reconsideration. Dkt.

#214 at 3. Mr. Harris’s second motion was also denied on the merits. In

denying the second motion, the district court cited the same reasons

previously given when denying the first motion. See Dkt. #217, at 2. So

both of the prior motions failed only after the district court had provided

complete review on the merits.

      Mr. Harris also argues that his prior motions should have been

dismissed for lack of jurisdiction. Appellant’s Opening Br. at 10–11. But

this argument is procedurally barred because Mr. Harris could have raised

this jurisdictional challenge in the prior proceedings. See United States v.

Bigford, 365 F.3d 859, 865 (10th Cir. 2004) (“[A]s long as a party had an

opportunity to litigate the jurisdictional issue, it is not subject to collateral

attack on that basis.”). Preclusion applies even if the prior judgment may

have rested on an incorrect legal principle. Federated Dep’t Stores, Inc. v.

Moitie, 452 U.S. 394, 398 (1981).

      This Court has also addressed a similar issue in the federal habeas

corpus context. Habeas claims already presented in a prior application are

barred as second or successive. 28 U.S.C. § 2244 (b)(1). In this context, a

motion for relief from a judgment “is a second or successive petition if it

in substance or effect asserts or reasserts a federal basis for relief from the

petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213,

                                        4
1215 (10th Cir. 2006). Similarly, Mr. Harris’s third motion simply

reasserts the same grounds for sentence reconsideration that he asserted in

his prior motions.

4.    The district court properly dismissed the motion for lack of
      jurisdiction.

      The parties agree that the First Step Act expressly prohibits courts

from reviewing motions for sentence reduction “if a previous motion made

under this section to reduce the sentence was, after the date of enactment

of this Act, denied after a complete review of the motion on the merits.”

First Step Act, Pub. L. 115-391, 132 Stat. 5194, 5222 (2018). Mr. Harris

filed two prior motions under § 404 of the First Step Act. Each was

“denied after a complete review of the motion on the merits.” Id. So the

district court correctly dismissed Mr. Harris’s motion for lack of

jurisdiction.

      Affirmed.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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