                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-28-2006

USA v. Padilla
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1582




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DPS-283                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 06-1582
                               ________________

                          UNITED STATES OF AMERICA


                                          v.

                                ROQUE PADILLA,
                               a/k/a RAFAEL CRUZ
                             a/k/a RAFAEL PEVALTA


                                      ROQUE PADILLA,

                                         Appellant
                    ____________________________________

                  On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                          (D.C. Crim. No. 00-cr-00012-1)
                  District Judge: Honorable Lawrence F. Stengel
                  _______________________________________

Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 July 20, 2006

  Before: FUENTES, VAN ANTWERPEN AND CHAGARES, CIRCUIT JUDGES

                               (Filed: July 28, 2006)

                           _______________________

                                   OPINION
                           _______________________

PER CURIAM
       In March 2000, Roque Padilla pleaded guilty to charges of conspiracy to distribute

crack cocaine, distribution of crack cocaine, and possession with intent to deliver crack

cocaine. After his sentencing, Padilla appealed and filed a motion pursuant 28 U.S.C.

§ 2255. The District Court dismissed Padilla’s § 2255 motion without prejudice to his

right to re-file it at the conclusion of his appeal. After we affirmed the judgment of

conviction and sentence, Padilla filed another motion pursuant to § 2255. The District

Court denied it, and we declined to issue a certificate of appealability.

       Padilla subsequently filed a “petition for reduction in term of imprisonment”

ostensibly pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 2241. The District Court

notified Padilla that it would treat his petition as a § 2255 motion and later furnished

Padilla with the pertinent form.1 Padilla then submitted the following claims in a § 2255

motion: (1) the District Court enhanced his sentence in violation of Apprendi v. New

Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United

States v. Booker, 543 U.S. 220 (2005), and his right to due process of law; and (2) his

counsel rendered ineffective assistance of counsel in failing to rely on In re Winship, 397

U.S. 358 (1970), to challenge the sentencing enhancements.




       1
       When notifying Padilla, the District Court did not provide Padilla with appropriate
warnings about the consequences of recharacterization. See Castro v. United States, 540
U.S. 375, 377 (2003). See also United States v. Miller, 197 F.3d 644, 646 (3d Cir. 1999).
However, Padilla is entitled to no remedy for this lapse, as recharacterization would have
served no meaningful purpose. See United States v. Chew, 284 F.3d 468, 469 (3d Cir.
2002).

                                              2
       The District Court dismissed Padilla’s motion for lack of jurisdiction because we

had not authorized Padilla to file another § 2255 motion. The District Court also held that

to the extent that Padilla sought a reduction in sentence pursuant to 18 U.S.C.

§ 3582(c)(2) on the basis of Booker, he had not raised a cognizable claim. Furthermore,

the District Court held that it was without jurisdiction to consider Padilla’s claims under

28 U.S.C. § 2241. Padilla appeals.2 We will affirm because no substantial question is

presented on appeal.3 See LAR 27.4.

       To the extent that Padilla proceeded pursuant to 28 U.S.C. § 2255, the District

Court properly dismissed Padilla’s motion for lack of jurisdiction. Generally, a district

court is without jurisdiction to review a second or successive § 2255 motion absent

authorization by the appropriate court of appeals. See 28 U.S.C. §§ 2244(a), 2255 ¶ 8.

Such was the case in the District Court as Padilla had not first received our authorization

despite having previously sought § 2255 relief.

       Furthermore, the District Court properly concluded that it was without jurisdiction

to consider Padilla’s claims under 28 U.S.C. § 2241, to the extent that Padilla sought to

present them under that statute. Padilla cannot bring his claims under § 2241, because a


       2
        We note that Padilla’s appeal, brought within 10 days of the District Court’s
order, is timely even to the extent that he appeals from an order denying relief under 18
U.S.C. § 3582(c)(2). See Fed. R. App. P. 4; United States v. Fair, 326 F.3d 1317, 1318
(11th Cir. 2003).
       3
        The Clerk’s Office notified Padilla that his appeal was subject to possible
summary action under Third Circuit LAR 27.4 and I.O.P. 10.6. In response, he continues
to press his claims under Apprendi, Blakely, and Booker.

                                              3
motion to challenge his conviction and sentence pursuant to 28 U.S.C. § 2255 is not

“inadequate or ineffective.” 28 U.S.C. § 2255. Section 2255 has been considered

inadequate and ineffective for a petitioner convicted and imprisoned for conduct since

deemed not to be criminal. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).

However, § 2255 is not inadequate or ineffective just because a petitioner is unable to

meet its stringent gatekeeping requirements. See id. Padilla does not make a claim that

fits under the In re Dorsainvil exception. In particular, we note that we have held that

§ 2255 is not an inadequate or ineffective way to bring claims based on Apprendi. See

Okereke v. United States, 307 F.3d 117, 120-21 (3d Cir. 2002). Moreover, claims under

Blakely and Booker are not sufficiently distinguishable from a claim under Apprendi to

meet the In re Dorsainvil exception and permit Padilla to seek relief under § 2241. Cf.

Okereke, 307 F.3d at 120-21. Also, success on his claim of ineffective assistance of

counsel does not undermine the criminality of Padilla’s conduct. See In re Dorsainvil,

119 F.3d at 251.

       Lastly, the District Court properly determined that Padilla had not presented a

basis for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). A criminal may

move for modification of his sentence if a sentencing range has subsequently been

lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o). See 18 U.S.C.

§ 3582(c)(2). However, § 3582(c)(2) does not afford Padilla relief because Booker is a

decision of the Supreme Court, not an amendment by the Sentencing Commission. See,



                                             4
e.g., United States v. Price, 438 F.3d 1005, 1007 (10th Cir. 2006) (collecting cases);

United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir. 2005) (per curiam);

cf. United States v. McBride, 283 F.3d 612, 615 (3d Cir. 2002) (holding that Apprendi v.

New Jersey, 530 U.S. 466 (2000), does not afford relief to a defendant seeking a

modification under § 3582(c)(2)).

       For the reasons stated above, the District Court’s order will be affirmed.




                                             5
