                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 10-3096
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                  JAMES MABRY, a/k/a James Young, a/k/a Manny

                                 JAMES MABRY,
                                           Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                    (D.C. Criminal Action No. 4-04-cr-00120-001)
                       District Judge: Honorable Malcolm Muir
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 22, 2011
                Before: SLOVITER, FISHER and WEIS, Circuit Judges
                           (Opinion filed March 15, 2011)

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM.

             James Mabry appeals from the District Court’s orders denying him relief

under 18 U.S.C. § 3582 and denying his subsequent motion for reconsideration combined

with his motion to amend. For the following reasons, we will dismiss the appeal for lack
of jurisdiction.

                                              I.

               In May 2005, Mabry pleaded guilty in the United States District Court for

the Middle District of Pennsylvania to a charge of possession with intent to distribute

more than five grams of crack cocaine, a violation of 21 U.S.C. § 841(a)(1) and

§ 841(b)(1)(B)(iii). The plea agreement included a lengthy recitation of Mabry’s

criminal history—which included numerous state offenses—as well as a waiver of

Mabry’s ―right to challenge any conviction or sentence . . . in any collateral proceeding.‖

Mabry objected to the pre-sentence report (PSR), which found that he qualified for

career-criminal status under United States Sentencing Guidelines §4B1.1; overruling his

objections, the District Court sentenced Mabry to a 210-month prison term on March 3,

2006.

               Since that time, Mabry has challenged his conviction and sentence via

numerous collateral attacks, despite the waiver provision of his plea agreement. Two

months after sentencing, he moved to vacate under 28 U.S.C. § 2255, claiming that

defense counsel ―failed to file a requested notice of appeal‖ in response to his ―illegal[ly]

imposed sentence.‖ The District Court held that Mabry’s motion was barred by the

waiver provision. We granted a certificate of appealability and affirmed, holding that

Mabry’s waiver was ―knowing and voluntary‖ and did not work a ―miscarriage of

justice.‖ United States v. Mabry, 536 F.3d 231, 244 (3d Cir. 2008), cert denied, 129 S.

Ct. 2789 (2009). Mabry then began to file challenges to his sentence under 18 U.S.C. §
                                              2
3582(c), attacking the crack/cocaine sentencing disparity and the PSR’s calculation of his

criminal history.

              The most recent of these efforts is the subject of the instant appeal. On

April 5, 2010, Mabry filed a ―Motion For Adjustment, Modification Of An Imposed

Term Of Imprisonment Pursuant To 18 U.S.C. § 3582(c)(1)(B) Predicated Upon Another

Modifying Statute 28 U.S.C. § 2255‖1 [hereinafter ―April 5 motion‖]. He called for an

―evidentiary hearing to demonstrate a fundamental miscarriage of justice by [the District

Court] during [his] sentencing,‖ claiming that a denial of ―procedural due-process of law‖

led to ―an unjust judgement [sic] of Petitioner being sentenced and misclassified as a

career offender for a violent crime . . . [that he] is actually innocent of.‖ The gist of his

argument, raised earlier in a previous § 3582 motion, was that several of his state

convictions did not qualify as ―crimes of violence‖ for the purpose of his criminal-history

calculation under the Sentencing Guidelines. Mabry also attacked the assignment of

criminal-history points for multiple cases that had been ― onsolidated [sic]‖ in state

court. He requested modification of his sentence to comport with the correct criminal-

history category.

              The District Court denied the motion on April 29, 2010, observing that

Mabry sought to ―relitigate the issue of whether he was properly considered a career

offender under the sentencing guidelines,‖ a matter the court had addressed in a previous

1
 18 U.S.C. § 3582(c)(1)(B) allows a court, in any case, to ―modify an imposed term of
imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the
Federal Rules of Criminal Procedure.‖
                                               3
disposition. Then, on May 12, Mabry filed a ―Motion to Make Additional Finding’s [sic]

and Motion to Alter or Amend Pursuant to Fed. R. Civ. Proc. 52(b) and 59(e), in

Objection’s [sic] to this Court’s Order Rendered on April 29, 2010,‖ [hereinafter ―May

12 motion‖] repeating many of the same arguments. The District Court denied the

motion on June 18, 2010. Mabry filed his notice of appeal on July 7, 2010.

                                             II.

              The parties contend that Mabry’s April 5 motion should be treated as a

continuation of his criminal proceeding. See, e.g., United States v. Arrango, 291 F.3d

170, 171 (2d Cir. 2002) (per curiam) (collecting cases). If we agreed, we would be

compelled to dismiss the appeal as untimely, to the extent it was taken from the denial of

his April 5 motion. Under Fed. R. App. P. 4(b)(1)(A)(i), Mabry was required to file his

notice of appeal within fourteen days after the District Court’s entry of judgment—a

period unaffected by his filing of his May 12 motion, see Fed. R. App. P. 4(b)(3)(A)

(listing limited motions that expand the time to file a notice of appeal). He clearly failed

to proceed within the time allowed.

              However, we believe that his April 5 motion should be treated as civil, not

criminal, because it was essentially a 28 U.S.C. § 2255 motion.

       When a § 3582 motion requests the type of relief that § 3582 provides for –

       that is, when the motion argues that sentencing guidelines have been

       modified to change the applicable guidelines used in the defendant’s

       sentencing – then the motion is rightly construed as a motion to amend
                                              4
       sentencing pursuant to § 3582. On the other hand, when a motion titled as a

       § 3582 motion otherwise attacks the petitioner’s underlying conviction or

       sentence, that is an attack on the merits of the case and should be construed

       as a § 2255 motion.

United States v. Carter, 500 F.3d 486, 490 (6th Cir. 2007). In both of his filings, Mabry

attacks the ―fundamental miscarriage of justice by [the District Court] during his

sentencing on March 3, 2006‖ (emphasis added). Moreover, Mabry’s assertion that his

sentence ―is in violation of the Constitution and Law’s [sic] of the United States‖ would

appear to be a clear invocation of the relief established in 28 U.S.C. § 2255(a).

Therefore, the April 5 motion was more appropriately construed as a § 2255 motion, in

which case the rules governing civil appeals apply.

              That being so, Mabry’s May 12 motion was timely filed as per Fed. R. App.

P. 4(a)(4)(A)(ii), (v–vi), and the appeal is timely with regard to both motions. See Fed.

R. App. P. 4(a)(4)(A).

                                            III.

              Nevertheless, we will dismiss the appeal for lack of jurisdiction. As

discussed above, Mabry filed a § 2255 motion that was denied on the merits before he

filed the April 5 motion.2 Thus, not only is the April 5 motion really a § 2255 motion, it

is also a second § 2255 motion, over which the District Court lacked jurisdiction because

2
  Our determination that the waiver provision of his plea agreement precluded in-depth
review of his claims constituted a disposition on the merits of his earlier petition. Cf.
Carter v. United States, 150 F.3d 202, 205–06 (2d Cir. 1998).
                                             5
we did not authorize its filing. The same applies to Mabry’s May 12 motion, which also

seeks to relitigate the merits of his conviction and sentence. See 28 U.S.C. §

2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 149 (2007) (petitioner’s failure to

comply with gate-keeping requirements of § 2244(b) ―deprived the District Court of

jurisdiction to hear his claims‖); Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). A

certificate of appealability is required to appeal from the denial of a § 2255 motion and a

related motion for reconsideration, but because reasonable jurists would all agree that the

District Court lacked jurisdiction, a certificate of appealability cannot issue. See 28

U.S.C. § 2253(c)(1–2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Morris v. Horn,

187 F.3d 333, 341 (3d Cir. 1999). Absent a certificate of appealability, we lack

jurisdiction over this appeal which, accordingly, we will dismiss. United States v.

Cepero, 224 F.3d 256, 267 (3d Cir. 2000) (a ―proper‖ certificate of appealability is

required for this Court to have jurisdiction over a petition).




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