                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                          JANUARY 19, 2006
                             No. 03-16364
                                                          THOMAS K. KAHN
                       ________________________
                                                              CLERK

                    D. C. Docket No. 88-00045-CR-1-1

UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                                  versus

EUGENE POWELL GRIFFIN,

                                               Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________


                            (January 19, 2006)


Before EDMONDSON, Chief Judge, BLACK and FAY, Circuit Judges.

PER CURIAM:
       Eugene Powell Griffin appeals the district court’s denial of his motion to

correct his sentence under former Rule 35(a) of the Federal Rules of Criminal

Procedure. The only issue with arguable merit is Griffin’s contention that his

sentence of life in prison under the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e)(1), is illegal within the meaning of former Rule 35(a) because his

predicate state burglary convictions were vacated after his federal sentence was

imposed. We affirm.

       In March of 1989, Griffin was convicted of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g).1 Griffin committed his offenses in

May of 1987, before the Sentencing Guidelines took effect. United States v.

Taylor, 931 F.2d 842, 844 (11th Cir. 1991) (holding Sentencing Guidelines apply

to offenses committed after November 1, 1987). At the time of sentencing, Griffin

had four prior state convictions for violent felonies–three burglary convictions

from 1958, 1965, and 1967, and one murder conviction from 1972–and therefore

qualified for a sentence under the ACCA, 18 U.S.C. § 924(e)(1).2 The district


       1
         Griffin was also convicted of possession of cocaine with the intent to distribute, a
violation of 21 U.S.C. § 841. The district court sentenced Griffin to 20 years’ incarceration to
run consecutively to the sentence imposed for Griffin’s § 922(g) conviction.
       2
          The version of § 924(e)(1) applicable to Griffin’s offense read in pertinent part: “In the
case of a person who violates section 922(g) . . . and has three previous convictions . . . for a
violent felony or a serious drug offense, or both, such person shall be . . . imprisoned not less
than fifteen years . . . .”

                                                  2
court sentenced Griffin to life in prison, the maximum sentence allowed by

§ 924(e)(1). This Court affirmed Griffin’s conviction and sentence in September

of 1990.

       On October 21, 1997, the Superior Court for Fulton County, Georgia,

vacated Griffin’s three prior burglary convictions under Boykin v. Alabama, 89 S.

Ct. 1709 (1969), because the State failed to rebut Griffin’s testimony that his

guilty pleas, entered more than thirty years ago, were not knowingly and

voluntarily made. Subsequently, Griffin, via a 28 U.S.C. § 2255 motion in the

district court, argued he no longer had the requisite three predicate offenses and

sought to reduce his federal life sentence to five-years’ incarceration, the statutory

maximum authorized under § 924(a)(1) for § 922(g) offenders who do not qualify

for the ACCA enhanced sentence. The district court denied the § 2255 motion

because it was successive, and this Court denied Griffin leave to file a successive

motion.3



       3
          Griffin filed a pro se § 2255 motion in January of 1992, at a time when a Rule 35(b)
motion filed by Griffin’s counsel was already pending. Docs. 1 & 4, Exh. Vol. 2. Griffin’s pro
se § 2255 motion asserted various grounds for relief unrelated to the issues in this appeal. The
district court denied both motions in August of 1992. Doc. 5, Exh. Vol. 2. This Court affirmed
without written opinion in March of 1995. Doc. 16, Exh. Vol. 2. In denying Griffin leave to file
a second or successive motion, we left open the possibility Griffin’s pro se § 2255 motion was
denied in a manner that would not render his later § 2255 motion “second or successive.” Doc.
36, Exh. Vol. 4. Because the issue has not been joined, we again express no opinion as to
whether § 2255 is unavailable to Griffin.

                                               3
      In August of 2002, Griffin filed a motion to correct his sentence pursuant to

former Rule 35(a), the version of the rule applicable to offenses committed prior to

November 1, 1987. Under former Rule 35(a), a court “may correct an illegal

sentence at any time.” Griffin argued his life sentence under the ACCA is illegal

because it is based on unconstitutionally obtained burglary convictions. The

district court denied the motion because Griffin’s burglary convictions were not

vacated until after his federal sentencing. Griffin appeals.

      Whether the district court “had the authority to resentence the defendant

under former Fed. R. Crim. P. 35(a) . . . is a legal question subject to plenary

review.” United States v. Sjeklocha, 114 F.3d 1085, 1087 (11th Cir. 1997). “On

the merits, a Rule 35 motion is reversible on appeal only when the sentence is

illegal or when the trial court’s refusal to reduce the sentence constitutes a gross

abuse of discretion.” United States v. Weaver, 884 F.2d 549, 551 (11th Cir. 1989)

(quotations omitted).

      Rule 35(a) “was a codification of existing law and was intended to remove

any doubt . . . as to the jurisdiction of a District Court to correct an illegal sentence

after the expiration of the term at which it was entered.” Heflin v. United States,

79 S. Ct. 451, 455 (1959) (Stewart, J. concurring). “Sentences subject to

correction under [former Rule 35(a)] are those that the judgment of conviction did

                                            4
not authorize.” United States v. Morgan, 74 S. Ct. 247, 250 (1954). Illegal

sentences for the purposes of Rule 35(a) include sentences in excess of the

statutory maximum for the offense, sentences imposing multiple punishment for

the same offense, and sentences containing terms that are legally or

constitutionally invalid. See, e.g., Hill v. United States, 82 S. Ct. 468, 472 (1962).

      We hold, as did the district court, that former Rule 35(a) is not available as a

means for Griffin to challenge his sentence under the ACCA. It is undisputed that

at the time of sentencing Griffin had at least three prior convictions for violent

felonies. Griffin’s offense of conviction, 18 U.S.C. § 922(g), therefore authorized

the imposition of a life sentence under the ACCA. Griffin has pointed to no

authority, and we have found none, suggesting that former Rule 35(a) may be used

to attack a sentence that was legal when imposed. The proper vehicle to advance

Griffin’s argument for relief is a motion pursuant to 28 U.S.C. § 2255. See United

States v. Walker, 198 F.3d 811, 813-14 (11th Cir. 1999) (holding a federal

prisoner may use § 2255 to challenge, reopen and reduce a federal sentence

enhanced under the ACCA after one or more of the three predicate state court

convictions are later vacated in a state habeas action).

      AFFIRMED.




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