     Case: 13-50475   Document: 00513140708     Page: 1   Date Filed: 08/04/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 13-50475                   United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
UNITED STATES OF AMERICA,                                         August 4, 2015
                                                                  Lyle W. Cayce
             Plaintiff – Appellee,                                     Clerk

v.

AUTRY LEE JONES,

             Defendant – Appellant.




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


Before DAVIS, ELROD, and HAYNES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      In this case, we must decide whether a sentencing reduction pursuant to
18 U.S.C. § 3582(c)(2) results in a new judgment such that a habeas application
attacking the reduced sentence is not “second or successive” to previous habeas
applications attacking the sentence. 28 U.S.C. §§ 2244(b), 2255(h). Relying on
the plain text of § 3582(c)(2) and on decisions of the Supreme Court and our
court interpreting the statute, we hold that a § 3582(c)(2) sentence reduction
does not result in a new judgment, but rather only in the modification of an
existing one, and a petitioner may not thereby avoid the requirements for filing
“second or successive” habeas applications.
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                                     No. 13-50475
                                            I.
      Jones was convicted by a jury of possession and conspiracy to possess
with intent to distribute cocaine base, and he was sentenced to life in prison
on each count. We affirmed his convictions on direct appeal. United States v.
Jones, No. 91-8599, 1992 WL 366499 (5th Cir. Dec. 4, 1992). Jones filed his
first § 2255 motion in July 1997. The district court dismissed the motion as
time-barred, and we dismissed Jones’s untimely appeal of that decision. In
1999, Jones filed another § 2255 motion, which the district court dismissed as
successive. We denied Jones’s motion for a COA. In 2005, Jones applied in
this court for leave to file a successive § 2255 motion.               We denied the
application.
      In February 2012, Jones filed an “Agreed Motion for Reduction of
Sentence” pursuant to § 3582(c)(2); the motion stated that Jones and the
Government agreed that his sentences should be reduced in light of 2011
amendments to the Sentencing Guidelines. The district court granted the
motion and reduced Jones’s life sentence on each count to 405 months, with
the sentences to run concurrently.               The district court denied Jones’s
subsequent motion to alter or amend the judgment. 1
      In March 2013, Jones filed the instant § 2255 motion and memorandum
in support, claiming that his counsel at his original trial rendered ineffective
assistance in several respects. The district court concluded that the § 2255
motion was successive and transferred it to this court. Jones timely filed a
notice of appeal and moved for a COA. We granted a COA on the issue of




      1 On December 17, 2014, after briefing in this appeal concluded, the district court
granted another § 3582(c)(2) motion and reduced Jones’s sentence further to 327 months of
imprisonment; however, the sentence reduction does not take effect until November 2, 2015.

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                                      No. 13-50475
whether Jones’s § 3582(c)(2) sentence reduction resulted in a new judgment
such that his proposed § 2255 motion is not successive. 2
                                            II.
       The Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-32, 100 Stat. 1214 (AEDPA), requires a prisoner to obtain authorization
from a federal court of appeals in his circuit before he may file a “second or
successive” habeas application in federal district court.                      28 U.S.C.
§ 2244(b)(3)(A). This requirement “creates a gatekeeping mechanism for the
district court’s consideration of successive applications for habeas relief.”
Propes v. Quarterman, 573 F.3d 225, 229 (5th Cir. 2009).                   “There is not,
however, a definition in the AEDPA of the term ‘second or successive’
application.” Id. A habeas application is not second or successive merely
because it follows an earlier application. In re Cain, 137 F.3d 234, 235 (5th
Cir. 1998). Rather, “a later petition is successive when it: 1) raises a claim
challenging the petitioner’s conviction or sentence that was or could have been
raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ.”
Id.
       Jones’s habeas application asserts that his trial counsel was ineffective—
a claim that he could have raised in an earlier application. However, he
contends that his application is not second or successive under the Supreme
Court’s decision in Magwood v. Patterson, 561 U.S. 320 (2010). In Magwood,
the Supreme Court held that when a habeas application “challenges a new
judgment for the first time, it is not ‘second or successive’ under § 2244(b).”
561 U.S. at 324. In Magwood, the habeas petitioner had been convicted of
murder and sentenced to death. Id. at 324–25. He filed a federal habeas



       2We have since held that a prisoner need not obtain a COA to appeal the transfer of
a § 2255 motion as successive. United States v. Fulton, 780 F.3d 683, 687–88 (5th Cir. 2015).
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                                 No. 13-50475
application, and the district court conditionally granted the writ, vacating the
sentence and ordering that the petitioner either be released or resentenced.
Id. at 326. After a new sentencing hearing, the petitioner was again sentenced
to death. Id. The petitioner filed a federal habeas application challenging his
new death sentence, and the district court again conditionally granted the writ.
Id. at 328.   The court of appeals reversed, holding that the petitioner’s
challenge to his new death sentence was second or successive because he could
have pursued it in his application attacking the original sentence. Id. at 329.
      On certiorari, the Supreme Court reversed.          Relying on the text
of § 2254(b), the Court reasoned that habeas applications are defined in
relation to the judgment that they attack; they seek invalidation of the
judgment authorizing the prisoner’s confinement. Id. at 332. Moreover, if
relief is granted, the government may typically seek a new judgment.
Id. Because the petitioner in Magwood had received a resentencing and thus
a new judgment, his habeas application challenging that new judgment could
not be “second or successive.” Id. at 342.
      While Magwood establishes that a habeas application challenging a
“new judgment” is not second or successive, it does not define the term “new
judgment.”    Thus, we must determine whether a sentence that has been
reduced pursuant to 18 U.S.C. § 3582(c)(2) qualifies as a “new judgment.”
Under Magwood, “[w]hether a new judgment has intervened between two
habeas petitions, such that the second petition can be filed without this Court’s
permission, depends on whether a new sentence has been imposed.” In re
Lampton, 667 F.3d 585, 588 (5th Cir. 2012). A review of the text of § 3582(c)(2),
and of the Supreme Court’s and our court’s decisions interpreting it, makes
clear that Jones has received a reduced sentence, not a new one, and therefore
Jones’s § 2255 motion—which raises a claim that Jones could have raised in
an earlier motion—is successive.
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                                 No. 13-50475
      Section 3582(c)(2) provides:


      The [sentencing] court may not modify a term of imprisonment
      once it has been imposed except that in 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 or the Director of the Bureau of Prisons, or on its
      own motion, 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.


18 U.S.C. § 3582(c)(2). As the Supreme Court has observed, “[b]y its terms,
§ 3582(c)(2) does not authorize a sentencing or resentencing proceeding.
Instead, it provides for the ‘modif[ication of] a term of imprisonment’ by giving
courts the power to ‘reduce’ an otherwise final sentence in circumstances
specified by the Commission.” Dillon v. United States, 560 U.S. 817, 825 (2010)
(holding that § 3582(c)(2) sentence-reduction proceedings do not implicate the
Sixth Amendment, and therefore United States v. Booker, 543 U.S. 220 (2005)
does not apply to such proceedings). The statute’s plain text “authorize[s] only
a limited adjustment to an otherwise final sentence and not a plenary
resentencing proceeding.” Id. at 826.
      The Guidelines are consistent with this understanding of the limited
nature of § 3582(c)(2) sentence-reduction proceedings.       Under U.S.S.G. §
1B1.10(b), when a district court reduces a sentence under § 3582(c)(2), it leaves
undisturbed the findings and calculations that formed the recommended
sentencing range, changing only the revised Guideline. This procedure does
not in any way resemble a full resentencing. Indeed, § 3582 itself provides that
“[n]otwithstanding the fact that a sentence to imprisonment can subsequently
be modified pursuant to the provisions of [§ 3582(c)], a judgment of conviction
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                                  No. 13-50475
that includes such a sentence constitutes a final judgment for all other
purposes.” § 3582(b)(1). Consequently, we have recently held in an analogous
context that because “‘a modification of a sentence does not affect the finality
of a criminal judgment,’” a sentence reduction under § 3582(c)(2) does not
restart the clock for AEDPA’s one-year limitations period for the filing of § 2255
motions.    United States v. Olvera, 775 F.3d 726, 729 (5th Cir. 2015)
(quoting United States v. Sanders, 247 F.3d 139, 143 (4th Cir. 2001)); accord
Murphy v. United States, 634 F.3d 1303, 1309 (11th Cir. 2011) (compiling
cases).
      Jones provides us with no reason to depart from these interpretations
of § 3582’s plain text. Jones has received a “reduc[tion]” resulting in the
“modif[ication]” of an existing sentence, not a full resentencing. Just as his
sentence reduction does not re-start AEDPA’s one-year limitations clock under
our precedent in Olvera, 775 F.3d at 729, it also does not wipe clean the slate
of habeas applications that he has previously filed.
      In so holding, we join the Seventh Circuit and several district courts that
have had occasion to resolve the question. See White v. United States, 745 F.3d
834, 836–37 (7th Cir. 2014) (holding that “Magwood does not reset the clock or
the count, for purposes of § 2244 and § 2255, when a prisoner’s sentence is
reduced” under § 3582(c), and noting the “substantial differences between
resentencing and sentence reduction”); see also, e.g., Perkins v. United
States, Nos. 3:14–CV–2183–K, 3:97–CR–0055–K–21, 2014 WL 2781845, *2
(N.D. Tex. June 19, 2014) (holding that a § 3582(c) sentence reduction does not
“reset to zero the number of collateral attacks for purposes of the bar on
successive section 2255 motion”); Jackson v. United States, Nos. 3:12–cv–3287,
3:12–cv–3350, 2014 WL 1351105, *3 (S.D. W. Va. Apr. 4, 2014) (holding that a
§ 3582(c) sentence reduction does not constitute a new judgment under


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                                  No. 13-50475
Magwood); Woods v. United States, Nos. 13–CV–385–JPS, 95–CR–187–JPS,
2013 WL 1648299, *1 (E.D. Wis. Apr. 16, 2013) (same).
                                       III.
      Because Jones’s habeas application raises a claim that he could have
raised in a prior application, and because no “new judgment” has intervened
between the filing of his present application and the filing of his previous ones,
his present application is successive to his 1997 and 1999 applications. Jones
did not seek or receive our authorization to file his successive application as
required by 28 U.S.C. §§ 2244(b), 2255(h).       Accordingly, we AFFIRM the
district court’s transfer order and DIRECT the Clerk to notify Jones that he
must file in this court a motion for authorization pursuant to § 2244(b)(3)(A)
within 30 days from the date of the Clerk’s notice, and that failure to do so will
result in entry of an order denying authorization. See United States v. Fulton,
780 F.3d 683, 686 (5th Cir. 2015) (affirming district court’s transfer order
where petitioner unsuccessfully argued that his application should not be
deemed successive); In re Epps, 127 F.3d 364, 365 (5th Cir. 1997) (holding that
where a district court transfers a successive habeas application to this court,
we will direct the Clerk to notify the petitioner that he must move for
authorization within 30 days).




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