                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                           November 16, 2015
                                   PUBLISH                 Elisabeth A. Shumaker
                                                               Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                     No. 14-3254
 v.

 LAURA ANJENNETTE WETZEL-
 SANDERS,

       Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF KANSAS
         (D.C. Nos. 5:14-CV-04104-SAC and 5:04-CR-40156-SAC-1)


Daniel T. Hansmeier, Appellate Chief, Kansas Federal Public Defender (Melody
Brannon Evans, Federal Public Defender, and Kirk C. Redmond, First Assistant
Federal Public Defender, on the briefs), Kansas City, Kansas, for Defendant -
Appellant.

James A. Brown, Assistant United States Attorney (and Barry R. Grissom, United
States Attorney, on the brief), Topeka, Kansas, for Plaintiff - Appellee.



Before KELLY, SEYMOUR, and MATHESON, Circuit Judges.


KELLY, Circuit Judge.


      Defendant-Appellant Laura Wetzel-Sanders appeals from the district
court’s denial of a joint motion by the parties to vacate her sentence, 28 U.S.C.

§ 2255. United States v. Wetzel-Sanders, No. 04–40156–SAC, 2014 WL 5502407

(D. Kan. Oct. 30, 2014). The district court denied the motion, but granted a

certificate of appealability (COA). 28 U.S.C. § 2253(c)(1)(B). Because we lack

jurisdiction as did the district court, we conclude that the COA was improvidently

granted, dismiss the appeal, and vacate the district court’s order.



                                    Background

      In July 2005, Ms. Wetzel-Sanders pled guilty to one count of bank robbery.

18 U.S.C. § 2113(a). For purposes of sentencing, she was deemed a career

offender, U.S.S.G. § 4B1.1(a), based upon a 2000 Kansas state conviction for

criminal threat (for which she received a seven-month sentence) and a 2002

federal conviction for bank robbery (for which she received an 18-month

sentence). 2 R. 9, 17, 18; United States v. Wetzel-Sanders, No. 04–40156–SAC,

2005 WL 2464572, at *2 (D. Kan. Sept. 28, 2005) (overruling objections to PSR

and noting that her “criminal history is marked by violence for which she has

earned the status of career offender”); United States v. Wetzel-Sanders, No.

02–40059–02–RDR, 2002 WL 31987397 (D. Kan. Dec. 23, 2002) (discussing

2002 conviction and substantial assistance downward departure).

      Given her second conviction for bank robbery, Ms. Wetzel-Sanders

received a 151-month federal sentence followed by three years’ supervised

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release. 1 R. 41-42. She did not file a direct appeal, but filed two unsuccessful

motions seeking relief under § 2255. One was based upon her deteriorating

mental condition; the motion was dismissed as untimely and outside the scope of

the court’s jurisdiction. United States v. Wetzel-Sanders, No.

04–40156–01–SAC, 2010 WL 126159, at *2 (D. Kan. Jan. 12, 2010). The other

was based on claims of ineffective assistance of counsel; the district court

deemed the motion successive, filed without authorization, and dismissed it for

lack of jurisdiction. United States v. Wetzel-Sanders, Civ. No. 13–4034–SAC,

Crim. No. 04–40156–01–SAC, 2013 WL 1447823, at *2 (Apr. 9, 2013). Ms.

Wetzel-Sanders then sought authorization to file a second or successive § 2255

motion which we denied. In re: Sanders, No. 13-3123 (10th Cir. June 6, 2013).

She filed for a second time, with the same outcome. In re: Sanders, No. 13-3196

(10th Cir. Aug. 8, 2013).

      We think it is a stretch to argue that this motion is not second or successive

either because the district court concluded it lacked jurisdiction to grant relief, or

that the present motion is really an initial motion because the government joined

it. A second or successive motion attacks the judgment of conviction or sentence

when a prior motion has already done so, albeit on different grounds. It is the

relief sought, not the dispostion that matters. Cf. United States v. Nelson, 465

F.3d 1145, 1148-49 (10th Cir. 2006). Moreover, § 2255 applies to motions

brought by a “prisoner,” so the government joining the motion is of no moment

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for this analysis. Moreover, Congress was surely aware that defendants might

wish to raise subsequent claims based upon changes in the applicable law, and

narrowly circumscribed the allowable claims through § 2255(h). See Prost v.

Anderson, 636 F.3d 578, 585-86 (10th Cir. 2011).

      On October 21, 2013, the parties filed the instant motion on the grounds

that Ms. Wetzel-Sanders was sentenced on materially incorrect information.

Succinctly stated, Ms. Wetzel-Sanders contends that after our decision in United

States v. Brooks, 751 F.3d 1204 (10th Cir. 2014), her state criminal threat

conviction does not qualify as a predicate offense for purposes of applying the

career-offender guideline. 1 R. 84. This is so because the conviction did not

result in a sentence of imprisonment exceeding one year. Id. The parties pointed

out that had the career offender enhancement not applied, Ms. Wetzel-Sanders

would have been subject to a guideline range of 70-87 months rather than 151-188

months. Id. at 82-83. The district court was not persuaded that Brooks applied, a

decision that both parties contend is wrong. Aplt. Br. at 7-8; Aplee. Br. at 10-11.

      The joint motion stated that the government waived any procedural hurdles

that might apply to § 2255 relief. 1 R. 85 n.13. On appeal, the government has

second thoughts. It now argues that the district court lacked jurisdiction because

the joint motion was a successive motion filed without the authorization required

by § 2255(h). The government further argues that Ms. Wetzel-Sanders’ claim is

not cognizable in a § 2255 action because it involves non-constitutional

                                        -4-
sentencing error and urges us to follow (for its persuasive value) United States v.

Trinkle, 509 F. App’x 700 (10th Cir. 2013). In Trinkle, a panel of this court

determined that a similar challenge related to interpretation of the guidelines and

could not be the basis for a constitutional claim as required for a COA. Id. at

702.



                                      Discussion

       We agree with the government that this appeal must be dismissed for lack

of jurisdiction and that the district court lacked jurisdiction to decide the merits of

what is Ms. Wetzel-Sanders’ third § 2255 motion. A successive § 2255 motion

requires certification from the court of appeals that the motion is based upon:

       (1) newly discovered evidence that, if proven and viewed in light of
       the evidence as a whole, would be sufficient to establish by clear and
       convincing evidence that no reasonable factfinder would have found
       the movant guilty of the offense; or

       (2) a new rule of constitutional law, made retroactive to cases on
       collateral review by the Supreme Court, that was previously
       unavailable.

28 U.S.C § 2255(h)(1) & (2); § 2244(b)(3)(A). Absent such certification, the

district court lacks subject matter jurisdiction to decide the merits of such a

motion and grant a COA. In re Cline, 531 F.3d 1249, 1251-52 (10th Cir. 2008)

(citing United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006)); see also

United States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011). Although the


                                          -5-
district court could have transferred the matter to this court, or dismissed it for

lack of jurisdiction, it should not have decided the motion. In re Cline, 531 F.3d

at 1251-1252. Thus, we will vacate the district court’s order.

      Although Ms. Wetzel-Sanders argues that the government waived its

arguments concerning a “second and successive” motion, the parties cannot waive

the district court’s subject matter jurisdiction. See Ins. Corp. of Ireland, Ltd. v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982); Henry v. Office of

Thrift Supervision, 43 F.3d 507, 511-12 (10th Cir. 1994). The parties cannot

avoid the jurisdictional bar of the certification requirement. See Gray v. Mullin,

171 F. App’x 741, 745 n.1 (10th Cir. 2006) (cited for its persuasive value). Even

were this court to construe Ms. Wetzel-Sanders appeal as seeking authorization to

file a second or successive § 2255 motion, she could not meet the requirements.

There is no “newly discovered evidence” and the 2014 decision in Brooks is not:

(1) a new rule of constitutional law (it is an interpretation of the guidelines), (2)

made retroactive by the Supreme Court (it was a direct appeal decided by the

Tenth Circuit).

      APPEAL DISMISSED. We VACATE the district court’s order on the

merits.




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