                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-4-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4795




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 07-4795


                          UNITED STATES OF AMERICA

                                            v.

                                   SIXTO LIZARDO
                                        a/k/a
                                       VINA

                                        Sixto Lizardo,

                                             Appellant


                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           District Court No. 99-CR-00385-1
                 District Judge: The Honorable Ronald L. Buckwalter


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 29, 2009

        Before: SCIRICA, Chief Judge, AMBRO, and SMITH, Circuit Judges

                               (Filed: February 4, 2009)


                                        OPINION


SMITH, Circuit Judge.

      In June of 2000, a jury convicted Sixto Lizardo of both conspiring to distribute and
distributing cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. The

United States District Court for the Eastern District of Pennsylvania sentenced Lizardo to

a mandatory minimum sentence of 240 months. Lizardo’s direct appeal was

unsuccessful.

       On May 11, 2005, Lizardo filed a motion to vacate and set aside his sentence under

28 U.S.C. § 2255. Relying on 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),

Lizardo claimed that his Sixth Amendment rights had been violated because the District

Court’s sentence was not based on facts, particularly the quantity of the cocaine and

cocaine base, found beyond a reasonable doubt. The District Court denied Lizardo’s

motion. Lizardo’s appeal of the District Court’s denial of his § 2255 petition fared no

better than his direct appeal.

       More than a year later, in September of 2007, proceeding pro se, Lizardo filed a

motion for reduction of sentence pursuant to Federal Rule of Civil Procedure 60(b)(4).

Lizardo asserted that the District Court lacked the authority to impose his sentence

because the District Court’s finding as to the quantity of drugs was not “pleaded and

proved to a jury.” After considering the government’s response to the motion, the

District Court entered a one sentence order denying the motion. This appeal followed.

We exercise jurisdiction under 28 U.S.C. § 1291.

       On appeal, counsel was appointed for Lizardo under the Civil Justice Reform Act.

Counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 743 (1967). He


                                             2
asserts that Lizardo’s motion for reduction constituted an unauthorized second or

successive § 2255 motion. We agree.

       After consideration of Lizardo’s initial § 2255 motion and his subsequent Rule

60(b) motion, we conclude that they present the same substantive claim for relief; that is,

the motions challenge the viability of the District Court’s sentence in the wake of

Apprendi, Blakely, and Booker. As a result, the subsequent Rule 60(b) motion constitutes

a second or successive habeas petition. Gonzalez v. Crosby, 545 U.S. 524, 531 (2005);

Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). As such, Lizardo’s motion “must

be certified as provided in section 2244 by a panel of the appropriate court of appeals . . .

.” 28 U.S.C. § 2255(h). Inasmuch as Lizardo’s motion had not been certified, the District

Court did not have jurisdiction to entertain it. Burton v. Stewart, 549 U.S. 147, 149

(2007). For that reason, we will affirm the District Court’s order denying Lizardo’s Rule

60(b) motion.

       Although Lizardo did not ask us to construe his appeal of the District Court’s order

as an application for authorization to file a second or successive habeas petition under 28

U.S.C. § 2244(b)(3)(A), we will do so. We will deny the application as we have

determined that Booker does not apply retroactively to § 2255 motions. United States v.

Lloyd, 407 F.3d 608, 616 (3d Cir. 2005).1




   1
    In light of our disposition of Lizardo’s appeal, we will grant counsel’s motion to
withdraw. We certify that the issues presented in the appeal lack legal merit and thus do
not require the filing of a petition for writ of certiorari with the Supreme Court. 3d Cir.
LAR 109.2(b).

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