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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15469
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:05-cr-00265-CLS-TMP-1



UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JOSEPH ALAN KELLY,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                              (May 30, 2018)

Before WILSON, JORDAN and HULL, Circuit Judges.

PER CURIAM:
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      Joseph Kelly, a pro se federal prisoner, appeals the district court’s denial of

his post-conviction motion to compel specific performance of his plea agreement

with the government. After review, we vacate and remand.

                                I. BACKGROUND

A.    Plea Agreement and Guilty Plea

      In December 2006, Kelly pled guilty to (1) possession with intent to

distribute “in excess of fifty (50) grams of methamphetamine” and a mixture and

substance containing cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A) (“Count 1”); (2) possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (“Count 2”); and

(3) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(“Count 3”).

      Kelly pled guilty pursuant to a written plea agreement, which stated, as part

of the factual basis, that law enforcement had seized 548.31 grams of “actual”

methamphetamine. The plea agreement specified, among other things, that: (1)

Kelly was aware of the maximum possible punishments under the charges in his

indictment and of the nature of the charges in the indictment; and (2) the

sentencing court could use facts it found by a preponderance of the evidence in

order to calculate Kelly’s advisory guidelines range. The plea agreement also

contained an appeal waiver and collateral attack waiver.


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      At his plea hearing, the government stated that the parties had agreed in the

factual basis in the plea agreement that the drug amount attributable to Kelly was

548.31 grams of actual methamphetamine. Kelly confirmed that the government’s

statements were accurate to the best of his knowledge. The district court explained

to Kelly that based on the amount of drugs attributable to him, he was subject to a

20-year statutory mandatory minimum sentence and a maximum life sentence. In

summarizing the factual basis for Kelly’s plea, the government stated, inter alia,

that according to a chemical forensic analysis, 548.31 grams of “actual

methamphetamine” was seized at Kelly’s home and barn. Kelly agreed that the

government’s facts were correct.

B.    Sentencing

      Prior to sentencing, the presentence investigation report (“PSI”) stated that

law enforcement had seized 548.31 grams of actual methamphetamine at Kelly’s

residence and, based in part on that drug quantity, calculated a base offense level

of 36. With a criminal history category of III, Kelly’s resulting advisory guidelines

range was 292 to 365 months in prison for Counts 1 and 3, with a mandatory 60-

month consecutive sentence for Count 2. Kelly did not object to the PSI’s factual

findings or the guidelines calculations, which were later adopted by the district

court at sentencing.




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      On February 22, 2007, Kelly was sentenced to 292 months’ imprisonment as

to Count 1 and 120 months’ imprisonment as to Count 3, to run concurrently, and

60 months’ imprisonment as to Count 2, to run consecutively to Counts 1 and 3.

Kelly did not object to his sentence.

C.    Direct Appeal

      On February 28, 2007, Kelly filed a direct appeal challenging the district

court’s denial of his pre-plea motion to suppress evidence. On November 7, 2007,

this Court dismissed Kelly’s appeal as barred by the valid appeal waiver in his plea

agreement and also waived by his voluntary and unconditional guilty plea. Kelly

has not filed a 28 U.S.C. § 2255 motion to vacate his conviction and sentence.

D.    Pro Se Motion to Compel Specific Performance of the Plea Agreement

      Almost three years later, on August 6, 2010, Kelly filed this pro se motion

for specific performance of his plea agreement. Kelly alleged that the government

had breached the plea agreement and acted unconstitutionally by stating in the PSI

that Kelly had possessed actual methamphetamine when the government had

stipulated in the plea agreement to the quantity and type of drug alleged in the

indictment, powder methamphetamine. Kelly claimed that the district court lacked

jurisdiction to sentence him based on actual methamphetamine because that

offense was not properly specified in the indictment, in violation of the Fifth and

Sixth Amendments. Kelly asserted that he was entitled to be resentenced.


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      In 2012, while his 2010 motion to compel was still pending, Kelly asked the

district court to take judicial notice of recent Supreme Court cases and argued that

his counsel had provided ineffective assistance by failing to object to the change in

drug type, which resulted in his acceptance of the plea agreement.

      In 2016, Kelly filed motions for summary judgment and for judgment on the

pleadings, pointing out that the government had not opposed his motion to compel

specific performance. Kelly also requested an evidentiary hearing and for the

district court to resentence him.

      In the meantime, in 2016, the district court granted Kelly’s 18 U.S.C.

§ 3582(c)(2) motion to reduce his sentence based on Amendment 782 to the

Sentencing Guidelines, and reduced Kelly’s sentence on Count 1 to 240 months in

prison. Thus, as it stands now, Kelly’s total sentence is 300 months.

E.    District Court’s Ruling

      In 2017, the district court referred Kelly’s motion to compel specific

performance to a magistrate judge. The magistrate judge issued a report

recommending that Kelly’s motion to compel specific performance, including his

related motions for summary judgment and judgment on the pleadings, be denied.

The 2017 report addressed the merits of Kelly’s motion, concluding, inter alia, that

the government did not prejudicially breach the plea agreement and that the PSI’s




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drug type and quantity (actual v. powder) were consistent with the indictment and

the factual basis for the plea.

      In a footnote, the 2017 report noted that “to the extent the Motion might be

construed as a motion to vacate or set aside a conviction, pursuant to 28 U.S.C.

§ 2255, it is time barred.” The 2017 report explained that Kelly’s conviction was

final in February 2008, ninety days after his direct appeal was dismissed and that

Kelly did not file his motion to compel specific performance until August 4, 2010,

outside the one-year period in § 2255(f) for filing a § 2255 motion.

      The 2017 report informed Kelly that he had fourteen days to object to the

report’s findings of fact and recommendations and that a “[f]ailure to object to

factual findings w[ould] bar later review of those findings, except for plain error.”

Kelly did not object to the 2017 report. The district court, reviewing de novo,

adopted the report and denied Kelly’s motion to compel specific of the plea

agreement and his related motions.

                                  II. DISCUSSION

      Here, Kelly’s pro se motion seeking to enforce the plea agreement

essentially asks that the district court resentence Kelly using a different drug type

and quantity, methamphetamine powder rather than methamphetamine actual,

which he says would result in a lower advisory guidelines range. The district court

denied Kelly’s pro se motion on the merits, finding that the government did not


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breach the plea agreement and that the drug type and quantity used in the PSI to

calculate Kelly’s guidelines range was consistent with the drug quantity alleged in

Kelly’s indictment and in the factual basis for his plea. The first question is

whether the district court had jurisdiction to change Kelly’s sentence.1

A. District Court’s Jurisdiction to Modify a Sentence

       “The authority of a district court to modify an imprisonment sentence [once

it has been imposed] is narrowly limited by statute.” United States v. Phillips, 597

F.3d 1190, 1194-95 (11th Cir. 2010). Under 18 U.S.C. § 3582(c), a district court

may modify a sentence only if: (1) the Bureau of Prisons (“BOP”) files a motion

and certain other conditions are met; (2) a modification is expressly permitted by

statute or Federal Rule of Criminal Procedure 35; or (3) the defendant was

sentenced based on a guidelines range that has subsequently been lowered by the

Sentencing Commission and other requirements are met. See 18 U.S.C.

§ 3582(c)(2); Phillips, 597 F.3d at 1194-95. Thus, “absent other express statutory

authority, modification of an imprisonment sentence can only be done pursuant to

Rule 35.” Phillips, 597 F.3d at 1195.

       Furthermore, the time for filing a Rule 35 motion is jurisdictional, and

outside of Rule 35, “there exists no ‘inherent authority’ for a district court to

       1
        We review de novo whether the district court had jurisdiction to rule on a defendant’s
post-conviction motion seeking to modify his sentence or to enforce a plea agreement. See
United States v. Phillips, 597 F.3d 1190, 1194 n.9 (11th Cir. 2010); United States v. Al-Arian,
514 F.3d 1184, 1189 (11th Cir. 2008).
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modify a sentence.” United States v. Diaz-Clark, 292 F.3d 1310, 1315-19 (11th

Cir. 2002) (concluding that the district court was without jurisdiction to resentence

the defendant under Rule 35 after the then-seven day period had expired).

       Kelly’s current pro se motion to compel specific performance does not fall

within any of the other categories of authorized § 3582(c) motions. In addition,

given that Kelly’s pro se motion was not filed within seven days of his February

2007 sentencing, the district court did not have jurisdiction under Rule 35 to

consider its merits. 2 See Diaz-Clark, 292 F.3d at 1317. Thus, absent some other

statutory source for jurisdiction, the district court should have dismissed, rather

than denied, Kelly’s pro se motion.

B.     Section 2255

       The remaining question, though, is whether the district court should have

construed Kelly’s pro se motion to compel specific performance as a § 2255

motion, especially given that Kelly had never filed a § 2255 motion.

       “Federal courts are obligated to look beyond the label of a pro se inmate’s

motion to determine if it is cognizable under a different statutory framework.”

United States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003). Therefore, a

       2
         At the time of Kelly’s 2007 sentencing, a district court could correct a sentence that
resulted from arithmetical, technical, or other clear error within seven days of imposing the
sentence. See Fed. R. Crim. P. 35(c) (2008). Under the current version of Rule 35, effective
December 1, 2009, a district court may correct a sentence for the same reasons within fourteen
days of orally pronouncing the sentence. Fed. R. Crim. P. 35(a). Thus, under either version of
Rule 35, the time to file a Rule 35 motion to correct Kelly’s sentence expired long before he filed
his pro se motion to compel specific performance of his plea agreement in 2010.
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district court is authorized to recharacterize a pro se litigant’s motion for relief

from a criminal judgment as a 28 U.S.C. § 2255 motion to vacate. Castro v.

United States, 540 U.S. 375, 381-83, 124 S. Ct. 786, 791-92 (2003). In addition,

this Court has held that a district court has subject matter jurisdiction over a

defendant’s post-conviction motion to compel specific performance of a plea

agreement under § 2255. See United States v. Al-Arian, 514 F.3d 1184, 1190-91

(11th Cir. 2008) (explaining that if the government had made and breached a

promise in the plea agreement, a defendant would be serving a federal sentence in

violation of his constitutional due process rights and thus the district court had

jurisdiction under § 2255 to enforce the plea agreement post-conviction).

      However, before a district court can recharacterize a pro se motion as an

initial § 2255 motion, the district court must provide the defendant with notice of

its intended recharacterization, warn the defendant that the recharacterization will

subject any subsequent § 2255 motions to the restrictions on second or successive

motions, and provide the defendant an opportunity to withdraw or amend the

motion. Castro, 540 U.S. at 383, 124 S. Ct. at 792. If the district court fails to

adhere to these requirements, the motion cannot be considered a § 2255 motion for

the purposes of applying the second or successive restrictions to the defendant’s

later § 2255 motions. Id., 124 S. Ct. at 792.




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      Moreover, in order for a prisoner to appeal a final order in a § 2255

proceeding, either the district court or this Court must issue a certificate of

appealability (“COA”). 28 U.S.C. § 2253(c); see also Fed. R. App. P. 22. If, as

here, a pro se prisoner files a notice of appeal, the district court must treat it as an

application for a COA and then either issue a COA or state why a COA should not

issue. See Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997). The

district court is required to rule upon an application for a COA before this Court

will consider a request for a COA. Id. at 1084-85 (remanding for the district court

consider the COA issue).

      Here, the magistrate judge’s 2017 report noted in a footnote that Kelly’s pro

se post-conviction motion could be construed as a § 2255 motion and that if it was

so construed, it would be untimely. Further, although the district court adopted the

report, it denied the motion to compel specific performance of the plea agreement

rather than dismiss it as untimely. To the extent the district court did in fact

dismiss Kelly’s construed § 2255 motion as time-barred, the district court did not

follow the Castro procedures and provide notice to Kelly before doing so. The

district court also did not issue a COA ruling in response to Kelly’s notice of

appeal.

      Accordingly, a remand is appropriate here for the district court to properly

construe Kelly’s pro se motion as an initial § 2255 motion and to follow the


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procedures in Castro. Under Castro, the district court should give Kelly an

opportunity to raise all of the claims he has challenging his convictions and

sentences and the government the opportunity to raise any defenses, including the

timeliness of Kelly’s construed § 2255 motion. See Castro, 540 U.S. at 383, 124

S. Ct. at 792 (stating that “the district court must notify the pro se litigant that it

intends to recharacterize the pleading, warn the litigant that this recharacterization

means that any subsequent § 2255 motion will be subject to the restrictions on

‘second or successive’ motions, and provide the litigant an opportunity to

withdraw the motion or to amend it so that it contains all the § 2255 claims he

believes he has”). In addition, the district court should, if necessary, address any

subsequent application for a COA.

C.     Kelly’s Failure to Object to the Report

       Citing this Court’s Rule 3-1, the government argues that even though the

district court did not comply with Castro, this Court need not remand because

Kelly waived his right to review from this Court by not filing written objections to

the magistrate judge’s 2017 report. Rule 3-1, however, would not completely bar

review in this case because Kelly asserts that he never received the 2017 report,

and even if Kelly did receive the report, the district court did not fully warn him of

the consequences of failing to object.




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      Under Rule 3-1, a party failing to object to a magistrate judge’s findings or

recommendations in a report “waives the right to challenge on appeal the district

court’s order based on unobjected-to factual and legal conclusions if the party was

informed of the time period for objecting and the consequences on appeal for

failing to object.” 11th Cir. R. 3-1. However, even absent an objection, Rule 3-1

provides that this Court may review for plain error “if necessary in the interests of

justice.” Id.

      In this case, the 2017 report warned Kelly only that his failure to object to

the report’s factual findings would result in review of those factual findings for

plain error. The report did not warn Kelly that his failure to object would result in

a waiver of his right to challenge the district court’s order on appeal. The 2017

report also said nothing about whether Kelly was required to object to legal

conclusions in addition to factual findings. Thus, we decline to find that Kelly

waived his right to appeal and to affirm on that basis.

                                 III. CONCLUSION

      For these reasons, we vacate the district court’s order denying Kelly’s pro se

motion to compel specific performance of the plea agreement and remand for

further proceedings consistent with this opinion.

      VACATED AND REMANDED.




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