           Case: 19-12207   Date Filed: 03/04/2020    Page: 1 of 6



                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12207
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket Nos. 0:19-cv-60480-JIC,
                         0:15-cr-60079-JIC-2


KADEEM WILLINGHAM,

                                               Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                               Respondent - Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (March 4, 2020)




Before MARTIN, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Kadeem Willingham, a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his pro se 28 U.S.C. § 2255 motion to vacate his

sentence. The government has moved for summary affirmance and a stay of the

briefing schedule. We do summarily affirm the dismissal.

      In 2015, a federal grand jury returned a twelve-count indictment charging

Willingham with conspiracy to commit Hobbs Act robbery, Hobbs Act robbery,

attempted Hobbs Act robbery, and brandishing a firearm in furtherance of a crime

of violence. Pursuant to a written plea agreement, Willingham pleaded guilty to

two counts (Counts 3 and 8) of brandishing a firearm in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). In exchange for

Willingham’s guilty plea, the government dismissed the remaining counts. The

district court sentenced Willingham to a 7-year mandatory minimum sentence on

Count 3 to run consecutively with a 25-year mandatory minimum sentence on

Count 8. Willingham filed no direct appeal.

      In 2016, Willingham filed a counseled section 2255 motion to vacate his

sentence in the light of the Supreme Court’s decision in Johnson v. United States,

135 S. Ct. 2551 (2015). The district court denied Willingham’s motion on the


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merits; both the district court and this Court denied Willingham a certificate of

appealability.

      In February 2019, Willingham filed pro se the section 2255 motion at issue

in this appeal. Briefly stated, Willingham seeks relief under section 403 of the

First Step Act of 2018, which amended section 924(c)(1)(C). Willingham

contends that his 25-year mandatory minimum sentence on Count 8 must be

vacated under the amended version of section 924(c).

      The district court determined that Willingham’s motion constituted an

unauthorized second or successive section 2255 motion and was, thus, subject to

dismissal for lack of jurisdiction. The district court also determined that -- even if

Willingham’s motion could be construed as a motion for a sentence reduction

under 18 U.S.C. § 3582(c)(1)(B) -- Willingham was unentitled to relief because

section 403 of the First Step Act was not made retroactive. This appeal followed.

      Summary disposition is appropriate where “the position of one of the parties

is clearly right as a matter of law so that there can be no substantial question as to

the outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).




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                                          I.



      We review de novo the dismissal of a section 2255 motion as second or

successive. Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir. 2014). We

construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998).

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a prisoner who has filed a section 2255 motion to vacate is limited in

his ability to file a “second or successive” section 2255 motion. Boyd, 754 F.3d at

1301. “If a court determines that a § 2255 motion is ‘second or successive,’ the

motion must be certified by the court of appeals before the district court may reach

the merits of the motion.” Id. Without such authorization, “the district court lacks

jurisdiction to consider a second or successive petition.” Farris v. United States,

333 F.3d 1211, 1216 (11th Cir. 2003).

      Willingham contends he is subject to no limitation on second or successive

2255 motions because his section 2255 motion relies on a “newly discovered fact”:

the enactment of the First Step Act. This argument is without merit. The

enactment of the First Step Act constitutes no “newly discovered evidence”

pertinent to whether a “reasonable factfinder would have found [Willingham]

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guilty of the offense.” See 28 U.S.C. § 2255(h)(1) (providing that a second or

successive section 2255 motion must be certified as containing, in pertinent part,

“newly discovered evidence . . . sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have found the movant guilty of the

offense. . ..”).

       Because Willingham’s section 2255 motion is “second or successive,” and

because Willingham has failed to receive authorization from this Court to file a

successive section 2255 motion, the district court concluded properly that the

motion was subject to dismissal for lack of jurisdiction.



                                           II.



       About a sentence-reduction motion, a district court may modify a

defendant’s sentence only to the extent permitted by statute. See 18 U.S.C. §

3582(c)(1)(B). “We review de novo a district court’s conclusions about the scope

of its legal authority under section 3582(c)(2).” United States v. Colon, 707 F.3d

1255, 1258 (11th Cir. 2013).

       Section 403 of the First Step Act provides expressly that the amendment to

section 924(c) applies only to defendants not yet sentenced when the Act was

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enacted. First Step Act of 2018, Pub. L. No. 115-391, § 403(b) (amendments to

section 924(c) “shall apply to any offense that was committed before the date of

enactment of this Act, if a sentence for the offense has not been imposed as of such

date of enactment.” (emphasis added)).

      Willingham was sentenced in September 2015: more than three years before

Congress enacted the First Step Act on 21 December 2018. By its plain language,

section 403 is thus inapplicable to Willingham. The district court concluded

correctly that it lacked authority to reduce Willingham’s sentence pursuant to

section 403.

      No substantial question exists as to the outcome of this appeal. Because the

government’s position is correct as a matter of law, summary affirmance is

appropriate. See Groendyke Transp., Inc., 406 F.2d at 1162. The government’s

motion for summary affirmance is GRANTED, and the government’s motion to

stay the briefing schedule is DENIED as moot.

      AFFIRMED.




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