     Case: 15-10874   Document: 00514608228     Page: 1   Date Filed: 08/20/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit

                                 No. 15-10874                      FILED
                                                             August 20, 2018
                                                              Lyle W. Cayce
Consolidated with 17-10541                                         Clerk


UNITED STATES OF AMERICA,

             Plaintiff – Appellee,

v.

THERESA CALTON,

             Defendant – Appellant.




                Appeals from the United States District Court
                     for the Northern District of Texas


Before JOLLY, ELROD, and WILLETT, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Theresa Calton was sentenced to 262 months in prison for conspiracy to
distribute crack cocaine. Calton filed two sentence-reduction motions under
18 U.S.C. § 3582(c)(2) based on Amendment 782 to the United States
Sentencing Guidelines. The district court denied both motions. Calton timely
appealed the denial of her second sentence-reduction motion and also timely
appealed the denial of another related motion. We consolidated the appeals.
Because no jurisdictional or procedural hurdle bars Calton’s consolidated
appeal and because the district court erred in determining that it lacked
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                       No. 15-10874 c/w No. 17-10541
authority to reduce Calton’s sentence pursuant to Amendment 782 of the
Guidelines, we VACATE the district court’s decision denying Calton’s
successive § 3582(c)(2) motion and REMAND for reconsideration of the motion.
                                      I.
      Theresa Calton sold crack cocaine to undercover police officers numerous
times in 2009 and 2010. When officers attempted to arrest Calton, she fled in
her vehicle, in which she then rammed a law enforcement vehicle, crossed
several medians, and reached speeds of 80 to 100 miles per hour.           She
afterwards abandoned her vehicle and was later arrested. Calton pleaded
guilty without a plea agreement to conspiracy to possess with intent to
distribute a controlled substance in violation of 21 U.S.C. § 846. Calton’s
amended pre-sentence report (PSR) held her accountable for distributing
423.07 grams of crack cocaine, which, when combined with two upward
adjustments, gave her an offense level of 37. In the addendum to the PSR, the
Probation Officer indicated that the career-offender provisions of Guideline
§ 4B1.1(B) applied to Calton based in part on her prior felony convictions.
However, according to the Probation Officer in the addendum to the PSR,
because Calton’s drug-quantity offense level (37) was higher than her career-
offender offense level (34), Calton’s Guidelines range would be based on drug
quantity. After a downward adjustment, her total offense level was 34 and her
Guidelines range was 262 to 327 months’ imprisonment.
      At the sentencing hearing, the district court adopted the conclusions and
factual findings of the PSR as modified or supplemented by the addendum.
Thus, the district court concluded that Calton’s total offense level was 34 and
her Guidelines range was 262 to 327 months’ imprisonment. The district court
stated that it was “persuaded that [Calton’s] sentence should be at the very
bottom of the guideline range.”    Accordingly, the district court sentenced


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                            No. 15-10874 c/w No. 17-10541
Calton to 262 months’ imprisonment to be followed by five years of supervised
release.
       In December 2014, Calton, proceeding pro se, submitted a form motion
for a sentence reduction pursuant to 18 U.S.C. § 3582(c). She requested a
reduction based on Amendment 782 to Guideline § 1B1.10. 1 The district court
denied Calton’s sentence-reduction motion, stating that Calton was “sentenced
as a career offender under the career offender provisions of USSG § 4B1.1
instead of the drug quantity provisions of USSG §§ 2D1.1 or 2D1.11.” Calton
appealed.
       We determined that Calton’s notice of appeal was untimely filed. United
States v. Calton, No. 15-10250 (5th Cir. June 16, 2015). However, we noted
that Federal Rule of Appellate Procedure 4(b)(4) allows the district court to
grant an additional 30 days in which to file a notice of appeal “upon a finding
of excusable neglect or good cause.” Id. Because Calton’s notice of appeal was
filed within 30 days of the district court’s order, we treated the filing as a
motion to determine whether Calton was entitled to an extension of time to
appeal, and we remanded to the district court for this determination. Id. The
district court determined that Calton was not entitled to an extension of time.
Concluding that this determination was not an abuse of discretion, we
dismissed Calton’s appeal. United States v. Calton, No. 15-10250 (5th Cir. July
21, 2015).
       Calton then filed a second § 3582(c)(2) motion for sentence reduction
pursuant to Amendment 782, which the district court denied for the same
reasons stated in its denial of her initial motion. Calton timely appealed and
moved for leave to proceed in forma pauperis (IFP). In our order granting


       1 Amendment 782, which became effective on November 1, 2014, “modified the drug-
quantity table in Section 2D1.1 of the Guidelines by lowering most drug-related base-offenses
levels by two.” United States v. Morgan, 866 F.3d 674, 675 (5th Cir. 2017).
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                          No. 15-10874 c/w No. 17-10541
Calton’s motion for leave to appeal IFP, we concluded that “the district court
erred by concluding that it lacked the authority to reduce Calton’s sentence
pursuant to § 3582(c)(2).” United States v. Calton, No. 15-10874, at 3 (5th Cir.
Mar. 16, 2016). However, we also noted that Calton might be “procedurally
barred from obtaining relief due to having previously filed a similar
§ 3582(c)(2) motion, . . . or [by] the doctrines of res judicata or law of the
case . . . .” Id. (citations omitted).
      Calton, still proceeding pro se, also filed in the district court a document
styled as a “Motion Pursuant to [Federal Rule of Civil Procedure] 60.” In her
motion, Calton again objected to the district court’s denial of her initial
§ 3582(c)(2) motion. The district court denied the Rule 60 motion, and Calton
timely appealed. We consolidated Calton’s appeal from the denial of her Rule
60 motion with her appeal from the denial of her second § 3582(c)(2) motion,
appointed counsel, and ordered supplemental briefing in this consolidated
appeal.
                                         II.
      “[T]he district court’s decision whether to reduce a sentence is reviewed
for abuse of discretion,” but a district court’s conclusion that it could not reduce
a sentence based on an interpretation or application of the Guidelines is
reviewed de novo. United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009).
“We review de novo whether the district court had jurisdiction to resentence.”
United States v. Garcia, 606 F.3d 209, 212 n.5 (5th Cir. 2010) (quoting United
States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997)).
                                         III.
                                         A.
      “[E]very federal appellate court has a special obligation to ‘satisfy itself
not only of its own jurisdiction, but also that of the lower courts in a cause
under review,’ even though the parties are prepared to concede it.” Bender v.
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                            No. 15-10874 c/w No. 17-10541
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting Mitchell v.
Maurer, 293 U.S. 237, 244 (1934)). Thus, we consider first whether the district
court had jurisdiction to consider Calton’s successive § 3582(c)(2) motion.
Under 18 U.S.C. § 3582(c)(2):
       [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 . . . , upon motion of
       the defendant . . . , the court may reduce the term of
       imprisonment, after considering the factors set forth in section
       3553(a) to the extent that they are applicable, if such a reduction
       is consistent with applicable policy statements issued by the
       Sentencing Commission.
We have determined that a district court may have jurisdiction to consider an
initial § 3582(c)(2) motion. See Garcia, 606 F.3d at 211–14, 212 n.5 (concluding
that the district court had jurisdiction under § 3582(c)(2) to modify defendant’s
sentence because the sentence was based on the Guidelines).                         However,
whether a district court has jurisdiction to consider a successive § 3582(c)(2)
motion is a question of first impression for our circuit. 2
       While we have not yet addressed whether a district court has jurisdiction
to consider a successive § 3582(c)(2) motion, every sister circuit that has
considered the issue has answered the question in the affirmative.                         See
Weatherspoon, 696 F.3d at 421 (determining that the district court had subject-
matter jurisdiction to consider a successive § 3582(c)(2) motion because



       2 Whether a district court has jurisdiction to consider a successive § 3582(c)(2) motion
is distinct from whether § 3582(c)(2)’s requirements are jurisdictional. See United States v.
Weatherspoon, 696 F.3d 416, 421–22 (3d Cir. 2012). As the Seventh Circuit has noted, the
Supreme Court “has not addressed [the] precise question [of whether § 3582(c)(2)’s
requirements are jurisdictional] but has decided the reach of § 3582(c)(2) without referring
to the statute’s limits as jurisdictional.” United States v. Taylor, 778 F.3d 667, 671 (7th Cir.
2015) (citing Freeman v. United States, 564 U.S. 522 (2011), and stating that “[a]ll of the
Justices—whether or not they joined the Court’s judgment—addressed the issue in terms of
whether Freeman was statutorily eligible for a sentence reduction, not whether the district
court had subject-matter jurisdiction to decide his motion”).
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                            No. 15-10874 c/w No. 17-10541
“congressional silence does not support an inference that Congress has ‘clearly
stated’ its intent to limit a district court’s jurisdiction to one § 3582(c)(2)
motion”); United States v. May, 855 F.3d 271, 274 (4th Cir.) (“Although we have
previously      prohibited      18     U.S.C.       §     3582(c)(2)-based       motions      for
reconsideration . . . ,    we     understand            this     prohibition    to    be     non-
jurisdictional . . . .), cert. denied, 138 S. Ct. 252 (2017); United States v. Beard,
745 F.3d 288, 291 (7th Cir. 2014) (rejecting the proposition that “§ 3582(c)(2)’s
limitation on when a sentence modification is permitted strips the district
court of subject-matter jurisdiction to consider an impermissible successive
motion”); United States v. Trujillo, 713 F.3d 1003, 1005 (9th Cir. 2013)
(rejecting the government’s contention that the district court lacked
jurisdiction to consider a second § 3582(c)(2) motion); United States v.
Caraballo-Martinez, 866 F.3d 1233, 1243 (11th Cir.) (stating that “§ 3582(c)(2)
contains no language that places a limitation on the district court’s jurisdiction
to consider successive motions based on the same amendment to the
Sentencing Guidelines” and therefore holding that § 3582(c)(2) has no such
jurisdictional limitation (quoting United States v. Anderson, 772 F.3d 662, 667
(11th Cir. 2014))), cert. denied, 138 S. Ct. 566 (2017).
        Today we join all of our sister circuits that have considered the question
and hold that district courts have jurisdiction to consider successive
§ 3582(c)(2) motions.        This holding accords with the rule that “[i]f the
Legislature clearly states that a threshold limitation on a statute’s scope shall
count     as    jurisdictional,      then   courts        and      litigants   will   be     duly
instructed . . . . But when Congress does not rank a statutory limitation on
coverage       as   jurisdictional,    courts       should       treat   the   restriction     as
nonjurisdictional in character.” Arbaugh v. Y&H Corp., 546 U.S. 500, 515–16
(2006) (footnote omitted); see also Reed Elsevier, Inc. v. Muchnick, 559 U.S.
154, 161 (2010) (“Our recent cases evince a marked desire to curtail such ‘drive-
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                            No. 15-10874 c/w No. 17-10541
by jurisdictional rulings,’ . . . which too easily can miss the ‘critical differences’
between true jurisdictional conditions and nonjurisdictional limitations on
causes of action” (first quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 91 (1998), and second quoting Kontrick v. Ryan, 540 U.S. 443, 456 (2004))).
Moreover, as the Seventh Circuit noted in Taylor, “§ 3582 is not part of a
jurisdictional portion of the criminal code but part of the chapter dealing
generally with sentences of imprisonment. . . . Nor is subsection (c) phrased in
jurisdictional terms.” 778 F.3d at 671; cf. Reed Elsevier, Inc., 559 U.S. at 162
(“Our holding [in Arbaugh] turned principally on our examination of the text
of [42 U.S.C.] § 2000e(b) . . . .”). 3      Therefore, the district court here had
jurisdiction to consider Calton’s successive § 3582(c)(2) motion.
                                             B.
       We next consider our own jurisdiction over Calton’s appeal from the
denial of her successive § 3582(c)(2) motion. Calton argues that 28 U.S.C.
§ 1291 gives us jurisdiction to consider her successive motion, whereas the
government argues that 18 U.S.C. § 3742(a)(2) provides the proper
jurisdictional basis.     Under § 1291’s general grant of jurisdiction, we may
consider appeals from all “final decisions” of the district courts.                   Under
§ 3742(a), “[a] defendant may file a notice of appeal in the district court for
review of an otherwise final sentence” if the sentence meets at least one of four
conditions—namely, if it was: (1) “imposed in violation of law”; (2) “imposed as
a result of an incorrect application of the sentencing guidelines”; (3) “greater




       3Our holding that § 3582(c)(2) creates no jurisdictional bar to a successive sentence-
reduction motion does not conflict with our holding in United States v. Garcia, as Garcia does
not address whether district courts have jurisdiction to consider successive § 3582(c)(2)
motions where the statutory requirements are met. In Garcia, we concluded that the
defendant could file an initial sentence-reduction motion under § 3582(c)(2)—where the plea
agreement stipulated to a minimum prison term—because the district court sentenced him
based on the Guidelines. 606 F.3d at 210–11, 214.
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                            No. 15-10874 c/w No. 17-10541
than the sentence specified in the applicable guideline range,” subject to some
qualifiers; or (4) “imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.” 18 U.S.C. § 3742(a)(1)–(4).
       The question of the proper basis for jurisdiction over appeals from
decisions concerning § 3582(c)(2) motions—whether successive motions or
initial ones—implicates a circuit split. At least five of our sister circuits have
recognized that § 1291 provides a proper basis for appellate jurisdiction over
§ 3582(c)(2) determinations. See United States v. McGee, 553 F.3d 225, 226 (2d
Cir. 2009) (stating that the court had jurisdiction under § 1291 to review the
district court’s denial of defendant’s § 3582(c)(2) motion), superseded by
regulation on other grounds; United States v. Rodriguez, 855 F.3d 526, 531–32
(3d Cir. 2017) (concluding that § 3742 did not bar the court from reviewing
under § 1291 the reasonableness of a denial of a § 3582(c)(2) motion); United
States v. Colson, 573 F.3d 915, 916 (9th Cir. 2009) (“We conclude that 18 U.S.C.
§ 3582(c)(2) sentence reduction decisions are reviewable in their entirety for
abuse of discretion under 28 U.S.C. § 1291.”); United States v. Washington, 759
F.3d 1175, 1180 (10th Cir. 2014) (stating that “§ 3742(a)(1) does not displace
§ 1291’s broad grant of appellate jurisdiction over appeals from final
sentencing orders”); United States v. Jones, 846 F.3d 366, 367–70 (D.C. Cir.
2017) (reasoning that “[d]enials of sentence reductions are unquestionably
‘final decisions of a district court’ because they close the criminal cases once
again.” (quoting § 1291)). 4 Only the Sixth Circuit has held that § 3742, rather



       4 Another sister circuit has asserted jurisdiction to review § 3582(c)(2) determinations
under both § 1291 and § 3742. United States v. Purnell, 701 F.3d 1186, 1188 (7th Cir. 2012)
(affirming the denial of a § 3582(c)(2) motion under both § 1291 and § 3742)). In the context
of a Federal Rule of Criminal Procedure 35(b) determination, the First Circuit has held that
§ 1291 is the exclusive jurisdictional basis. See United States v. McAndrews, 12 F.3d 273,
277 (1st Cir. 1993) (footnote omitted) (“It follows that the appealability of an order resolving
a Rule 35(b) motion is not controlled by 18 U.S.C. § 3742 because such an order is not,
properly speaking, a sentence.         Rather, appealability in such circumstances, like
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                             No. 15-10874 c/w No. 17-10541
than       § 1291,   provides     jurisdiction     over    appeals      from    § 3582(c)(2)
determinations. See United States v. Bowers, 615 F.3d 715, 722 (6th Cir. 2010)
(concluding that because Sixth Circuit precedent held that Rule 35(b)
determinations        were      reviewable        only    under     § 3742,     § 3582(c)(2)
determinations were also reviewable only under § 3742); see also Rodriguez,
855 F.3d at 530 (“No Circuit has followed this 2010 [Sixth Circuit] decision.”). 5
       We join the Second, Third, Ninth, Tenth, and D.C. Circuits and hold that
§ 1291 provides the proper jurisdictional basis for reviewing appeals from
denials of § 3582(c)(2) sentence-reduction motions. 6                 The D.C. Circuit’s
reasoning in Jones is particularly persuasive: “Denials of sentence reductions
are unquestionably ‘final decisions of a district court’ because they close the
criminal cases once again.” 846 F.3d at 369 (quoting § 1291). While “a would-
be appellant cannot use [§ 1291’s] broad grant of jurisdiction to circumvent
statutory restrictions on sentencing appeals in § 3742,” when district courts
deny § 3582(c)(2) motions, the result is only “final orders—not new sentences
by any definition.” Id. at 369–70; see also § 3742(a) (“A defendant may file a



appealability with respect to the disposition of virtually all other post-judgment motions, is
governed by 28 U.S.C. § 1291.”).

       5 In United States v. Lightfoot, 724 F.3d 593 (5th Cir. 2013), we considered an appeal
from the judgment of the district court reducing a defendant’s original sentence pursuant to
Federal Rule of Criminal Procedure 35(b). 724 F.3d at 594. We concluded that we had
jurisdiction to consider whether the sentence was “imposed in violation of law” under
§ 3742(a)(1) and therefore “d[id] not consider [the defendant’s] contention that we would have
jurisdiction under 28 U.S.C. § 1291 . . . .” Id. at 595–96, 595 n.6. Moreover, we recognized in
Lightfoot that “the nature of a sentence reduction under Rule 35 differs from the other two
circumstances permitting modification described in § 3582(c).” Id. at 598. Thus, Lightfoot
does not address whether § 1291 or § 3742 (or both) provides a proper jurisdictional basis for
reviewing § 3582(c)(2) determinations.

       6  We do not reach the question of whether § 1291 or § 3742 (or both) provides
jurisdiction to review a ruling that grants a § 3582(c)(2) motion and modifies the sentence, as
the district court here denied both Calton’s initial and successive § 3582(c)(2) motions (as
well as her Rule 60 motion).
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                         No. 15-10874 c/w No. 17-10541
notice of appeal in the district court for review of an otherwise final
sentence . . . .” (emphasis added)). Thus, “it appears that at least the most
obvious reading of § 3742 renders it inapplicable” to the denial of a § 3582(c)(2)
motion. Jones, 846 F.3d at 370. As the Supreme Court has stated, “a district
court proceeding under § 3582(c)(2) does not impose a new sentence in the
usual sense,” and holding that § 1291 supplies the jurisdictional basis for
reviewing denials of § 3582(c)(2) motions best comports with this principle. See
Dillon v. United States, 560 U.S. 817, 827 (2010); see also United States v.
Leatch, 858 F.3d 974, 979 (5th Cir.) (“[A] sentence reduction under section
3582(c)(2) is distinct from a full resentencing proceeding.”), cert. denied, 138 S.
Ct. 401 (2017).
                                        C.
      Having concluded that the district court had jurisdiction to consider
Calton’s successive § 3582(c)(2) motion and that we have jurisdiction to review
the district court’s final judgment denying her successive motion, we turn to
consider whether Calton’s appeal is procedurally barred. The government
primarily argues that Calton’s appeal is barred by two doctrines: res judicata
and law of the case. In support of its argument that res judicata applies, the
government points to our unpublished decision in United States v. Harcourt,
363 F. App’x 296 (5th Cir. 2010). In Harcourt, a panel of our court reviewed
the denial of a second § 3582(c)(2) motion and determined that res judicata
barred the defendant’s appeal because the district court had denied the
defendant’s initial § 3582(c)(2) motion. 363 F. App’x at 297.
      “Application of res judicata is proper only if the following four
requirements are met: (1) the parties must be identical in the two suits; (2) the
prior judgment must have been rendered by a court of competent jurisdiction;
(3) there must be a final judgment on the merits; and (4) the same cause of
action must be involved in both cases.” Russell v. SunAmerica Sec., Inc., 962
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                        No. 15-10874 c/w No. 17-10541
F.2d 1169, 1172 (5th Cir. 1992). Res judicata “prevents collateral attack on the
result of the completed lawsuit between the same parties.”            Pegues v.
Morehouse Par. Sch. Bd., 706 F.2d 735, 738 (5th Cir. 1983) (quoting Loumar v.
Smith, 698 F.2d 759, 762 (5th Cir. 1983)); see also 18 Charles Alan Wright et
al., Federal Practice and Procedure § 4404 (3d ed.) (“Res judicata applies as
between separate actions, not within the confines of a single action on trial or
appeal.”).
      In United States v. Alvarez, 210 F.3d 309 (5th Cir. 2000), we affirmed the
principle that “a § 3582(c)(2) motion is not a civil postconviction action but a
‘step in a criminal case.’” 210 F.3d at 310 (quoting United States v. Ono, 72
F.3d 101, 102–03 (9th Cir. 1995), and citing United States v. Petty, 82 F.3d 809,
810 (8th Cir. 1996)). Thus, the denial of a § 3582(c)(2) motion does not operate
as a res-judicata bar to a successive § 3582(c)(2) motion because such a motion
is a step in the same criminal case rather than a separate action collaterally
attacking a completed lawsuit. Id. Harcourt conflicts with our published
caselaw regarding res judicata, and we do not follow it here. See id.; see also
United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014) (“This court’s rule
of orderliness prevents one panel from overruling the decision of a prior panel.”
(quoting McClain v. Lufkin Indus., 649 F.3d 374, 385 (5th Cir. 2011))).
      Having concluded that res judicata cannot bar Calton’s appeal, we turn
to the doctrine known as law of the case. Law of the case “applies to a single
proceeding, and operates to foreclose re-examination of decided issues either
on remand or on a subsequent appeal.” Pegues, 706 F.2d at 738. However,
“law of the case is not a jurisdictional rule, but a discretionary practice.”
United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002). “Unlike res
judicata, the law of the case doctrine does not encompass issues presented for
decision but left unanswered by the appellate court.” Pegues, 706 F.2d at 738.


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                             No. 15-10874 c/w No. 17-10541
       Even assuming that the government has not forfeited any argument
based on law of the case, the doctrine does not apply here because we have not
previously decided whether Calton is eligible for a sentence reduction pursuant
to Amendment 782. In an order granting Calton’s motion to proceed IFP, we
determined that “whether the district court erred in denying Calton’s
§ 3582(c)(2) motion constitutes a nonfrivolous issue for appeal.” United States
v. Calton, No. 15-10874, at 3 (5th Cir. Mar. 16, 2016). However, we also noted
that “[a]nother issue implicated in this appeal is whether Calton is
procedurally barred from obtaining relief due to having previously filed a
similar § 3582(c)(2) motion, . . . or [by] the doctrines of res judicata or law of
the case . . . .” Id. at 3 (citations omitted). Because we have not previously
decided whether Calton may obtain relief on her successive motion for sentence
reduction, law of the case poses no bar. 7
                                               D.
       Having determined that no jurisdictional or procedural hurdle bars
Calton’s consolidated appeal, we now consider the merits. The government
concedes that the district court erred in determining that Calton was ineligible



       7  The government concedes that our rule in Burnside v. Eastern Airlines, Inc., 519
F.2d 1127 (5th Cir. 1975), does not apply to Calton’s successive § 3582(c)(2) motion—the heart
of this consolidated appeal. Moreover, the government has forfeited any argument that the
Burnside rule bars the appeal of Calton’s Rule 60 motion. In its initial brief, the government
stated that Calton’s appeal was “potentially barred” by precedents such as Burnside, but
reasoned that “res judicata is the better doctrinal fit as a procedural bar.” In its supplemental
brief, the government states that “[t]o the extent . . . that the appeal in No. 17-10541, is
construed as a denial of a motion for reconsideration . . . the rule would seem to apply.” The
government has failed to press the Burnside claim on appeal. See United States v. Scroggins,
599 F.3d 433, 447 (5th Cir. 2010) (“Claims not pressed on appeal are deemed abandoned.”
(quoting Knatt v. Hosp. Serv. Dist. No. 1, 327 F. App’x 472, 483 (5th Cir. 2009))). Even
assuming arguendo that the government has not forfeited the argument from Burnside, we
would not choose today to extend the Burnside rule to the criminal context of § 3582(c)(2)
motions. See United States v. Reyes, 945 F.2d 862, 864 (5th Cir. 1991) (declining to apply
Burnside in a criminal case “because [defendant’s] motions pray for the vacation of a criminal
conviction rather than a civil judgment and are not ordinary Rule 60(b) motions”).
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                        No. 15-10874 c/w No. 17-10541
for a sentence reduction pursuant to Amendment 782. We indicated as much
in our previous order allowing Calton to proceed IFP on appeal. See United
States v. Calton, No. 15-10874, at 2–3 (5th Cir. Mar. 16, 2016). In denying
Calton’s second § 3582(c)(2) motion for sentence-reduction (the denial of which
Calton timely appealed), the district court stated that Calton was “ineligible
for a reduced sentence under Amendment 782” and denied her motion “for the
same reasons enunciated in the order of February 24, 2015.” In its February
2015 order, the district court determined that Calton was “sentenced as a
career offender under the career offender provisions of USSG § 4B1.1 instead
of the drug quantity provisions of USSG §§ 2D1.1 or 2D1.11” and thus Calton
was ineligible for resentencing.
      This was error.    While the Probation Officer noted that the career-
offender provisions of Guideline § 4B1.1(B) applied to Calton based on prior
convictions, the Probation Officer later stated in the addendum to the PSR that
because Calton’s drug-quantity-based offense level was higher than her career-
offender offense level, her Guidelines range would be based on drug quantity.
Therefore, Amendment 782, which reduced by two levels most drug-quantity-
based offense levels, applies to Calton’s sentence. See Morgan, 866 F.3d at 675;
see also U.S.S.G. § 1B1.10(a), (d); U.S.S.G. App. C., Amend. 788 (making
Amendment 782 retroactive). Amendment 782 lowers Calton’s Guidelines
range from 262 to 327 months’ imprisonment to 210 to 262 months’
imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). The district court
erred in concluding that Calton was ineligible for a sentence reduction because
of its incorrect determination that Calton was sentenced under the career-
offender provisions rather than under the drug-quantity provisions.
                                      IV.
      Accordingly, because no jurisdictional or procedural hurdle bars Calton’s
consolidated appeal and because the district court erred in determining that it
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    Case: 15-10874       Document: 00514608228          Page: 14     Date Filed: 08/20/2018



                            No. 15-10874 c/w No. 17-10541
lacked authority to reduce Calton’s sentence pursuant to Amendment 782 of
the Guidelines, we VACATE the district court’s decision denying Calton’s
successive § 3582(c)(2) motion and REMAND for reconsideration of the
motion. 8




       8 Because we vacate the district court’s judgment and remand for reconsideration of
Calton’s successive § 3582(c)(2) motion, we need not address Calton’s alternative argument
that we should recall the mandate in No. 15-10250, nor do we exercise our inherent power to
recall the mandate here. See 5th Cir. R. 41.2.
        In addition, because we remand for reconsideration of Calton’s successive § 3582(c)(2)
motion, we need not address the denial of Calton’s Rule 60 motion, which concerns the same
fundamental request for sentence reduction pursuant to Amendment 782.
                                             14
