                    Case: 11-13986         Date Filed: 03/25/2013   Page: 1 of 4


                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-13986
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 8:97-cr-00213-EAK-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,


                                                 versus


HANDY BAILEY, JR.,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                           (March 25, 2013)

Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 11-13986     Date Filed: 03/25/2013    Page: 2 of 4


      Handy Bailey, Jr. appeals the district court’s denial of his motion to correct

his total 360-month sentence. Because we conclude that the district court lacked

jurisdiction over Bailey’s motion, we affirm.

      In 1997, Bailey was convicted of two counts of possession with intent to

distribute cocaine base. Because Bailey had prior convictions, the government

filed an information and notice under 21 U.S.C. § 851 to seek enhanced penalties.

The court ultimately sentenced Bailey to 360 months’ imprisonment. This court

affirmed the convictions and sentences on direct appeal.

      Thereafter, Bailey filed numerous unsuccessful post-conviction motions.

He then filed the instant motion entitled “Nunc Pro Tunc Motion for Correction of

an Issue Required Now That Was Required Then (Being Time of Sentence) as the

Court Lacked Jurisdiction to Impose the Sentence.” In this motion, as in previous

motions, Bailey challenged the propriety of the § 851 notice and the district

court’s jurisdiction to sentence him based on an enhanced penalty. The district

court denied the motion. Bailey now appeals.

      We review de novo whether the district court properly exercised jurisdiction

over a claim. United States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th Cir. 2002).

Where a district court lacked jurisdiction, we have jurisdiction only for the limited

purpose of correcting the district court’s error in entertaining the claim. See

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Williams v. Chatman, 510 F.3d 1290, 1294-95 (11th Cir. 2007).

      Under 18 U.S.C. § 3582(c), the district court has jurisdiction to modify an

imposed term of imprisonment only under specific circumstances. Diaz-Clark,

292 F.3d at 1315-16. For example, a federal prisoner seeking relief from his

conviction or confinement may file, pursuant to 28 U.S.C. § 2255, a motion to

vacate in the district court. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir.

2003). A prisoner may not, however, file a second or successive petition under

§ 2255 unless and until we grant certification. 28 U.S.C. § 2255(h); Diaz-Clark,

292 F.3d at 1316. Absent such permission, the district court lacks jurisdiction to

address the petition and must dismiss it. United States v. Holt, 417 F.3d 1172,

1175 (11th Cir. 2005). We will look beyond the label of a prisoner’s post-

conviction motion to determine if he is, in substance, seeking relief under § 2255.

Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011) (en banc).

       To obtain a sentencing enhancement based upon a defendant’s prior

conviction, the government must comply with the notice requirements set forth in

21 U.S.C. § 851(a)(1). Perez v. United States, 249 F.3d 1261, 1264 (11th Cir.

2001). But § 851 does not itself provide a mechanism for a collateral attack upon

a sentence, nor does it grant the district court power to alter a sentence. See

generally 21 U.S.C. § 851. Rather, a prisoner’s claim that his sentence was

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imposed in violation of § 851(a) is cognizable under § 2255. See Harris v. United

States, 149 F.3d 1304, 1307 (11th Cir. 1998).

      To the extent Bailey’s motions challenged the validity of his 360-month

sentence based upon the jurisdictional adequacy of the § 851 enhancement, it

should have been construed by the district court as a § 2255 motion. Because

Bailey has filed previous unsuccessful § 2255 motions, he was required to seek

our permission before filing a successive application. He failed to do so.

Therefore, to the extent Bailey raised claims that should have been raised in his

first § 2255 motion, the district court should have dismissed those claims for lack

of subject matter jurisdiction as opposed to denying them. But we construe the

district court’s denial on the merits as a dismissal and affirm because this is a

distinction that makes no difference in this case. See Cani v. United States, 331

F.3d 1210, 1216 (11th Cir. 2003) (construing district court’s dismissal for lack of

jurisdiction as denial on the merits and affirming because the distinction between

denial and dismissal makes no significant difference).

AFFIRMED.




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