     Case: 15-30581      Document: 00513560065         Page: 1    Date Filed: 06/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30581                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            June 22, 2016
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

EDWARD DAVIS,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-36-2


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Pursuant to his guilty plea, Edward Davis was convicted of conspiring to
distribute and possess with intent to distribute five grams or more of cocaine
base and distribution of five grams or more of cocaine base. After denying
Davis’s request to apply the Fair Sentencing Act of 2010 (FSA), the district
court determined that Davis was a career offender pursuant to U.S.S.G.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-30581
§ 4B1.1(a), with a Guidelines range of 262 to 327 months of imprisonment. The
district court downwardly departed pursuant to U.S.S.G. § 5H1.3 and
sentenced Davis in February 2011 to concurrent terms of 185 months of
imprisonment. Davis did not appeal.
      The Supreme Court later held that the FSA applied retroactively to
defendants, such as Davis, who committed a crime before the FSA went into
effect but who were sentenced after the FSA became effective. See Dorsey v.
United States, 132 S. Ct. 2321, 2335–36 (2012).     Taking note of Dorsey, the
district court, having previously denied Davis’s 28 U.S.C. § 2255 motion in
which he sought retroactive application of the FSA, conducted a resentencing
hearing in June 2015.       The district court determined that retroactive
application of the FSA reduced Davis’s statutory maximum sentence, thus
lowering his career offender base offense level and consequently the applicable
Guidelines range. The district court imposed concurrent 151-month terms of
imprisonment on resentencing.
      Davis appeals from the resentencing. He argues that the district court
erred at resentencing by not applying the same percentage reduction from his
Guidelines range applied at his original sentencing.
      This court must satisfy itself of the district court’s jurisdiction. United
States v. Garcia, 606 F.3d 209, 212 n.5 (5th Cir. 2010). If we determine the
district court “lack[s] jurisdiction, we have jurisdiction on appeal, not of the
merits but merely for the purpose of correcting the error of the lower court in
entertaining the” matter. Arizonans for Official English v. Arizona, 520 U.S.
43, 73 (1997).    “[A] judgment of conviction that includes [a sentence of
imprisonment] constitutes a final judgment” for all purposes unless modified
or corrected on direct appeal under 18 U.S.C. § 3742, modified under 18 U.S.C.
§ 3582(c), or corrected under Federal Rule of Criminal Procedure 35. 18 U.S.C.
§ 3582(b); see United States v. Caulfield, 634 F.3d 281, 283 (5th Cir. 2011).
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                                 No. 15-30581
      We do not agree with the Government’s contention that the resentencing
was conducted pursuant to Section 2255. As noted above, the district court
had previously denied Davis’s Section 2255 motion, and Davis’s appeal of that
denial was pending when the resentencing took place. The resentencing took
place far beyond the 14-day period provided by Rule 35(a), which is a
jurisdictional time limit. See FED. R. CRIM. P. 35(a); United States v. Lopez, 26
F.3d 512, 515–20 (5th Cir. 1994). Further, resentencing was not on account of
substantial assistance to the Government, as permitted by Rule 35(b). See
FED. R. CRIM. P. 35(b).    Nor was Davis’s sentence reduced pursuant to a
retroactive amendment to the Sentencing Guidelines, as contemplated by
Section 3582(c)(2). Indeed, as we have held, “[t]he crack cocaine guideline
amendments do not apply to prisoners sentenced as career offenders.” United
States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009).
      Accordingly, we conclude that the district court lacked authority to
resentence Davis. That means that the 151-month sentence of imprisonment
imposed on resentencing is void, as is the corresponding entry of judgment.
The sentence is VACATED and the remainder of this appeal is DISMISSED.
      In order to prevent injustice and by separate order entered this day, we
have reinstated Davis’s prior appeal, No. 13-31002.




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