                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF                             Nos. 16-10499
 AMERICA,                                          17-15453
        Plaintiff-Appellee,
                                               D.C. Nos.
                 v.                    2:95-cr-00504-WBS-AC-1
                                        2:16-cv-01344-WBS-AC
 JOSE LUIS BUENROSTRO,
      Defendant-Appellant.                        OPINION


          Appeal from the United States District Court
               for the Eastern District of California
        William B. Shubb, Senior District Judge, Presiding

              Argued and Submitted April 12, 2018*
                   San Francisco, California

                         Filed July 13, 2018

   Before: William A. Fletcher and Richard C. Tallman,
   Circuit Judges, and Brian M. Morris,** District Judge.

                  Opinion by Judge W. Fletcher


    *
      The panel unanimously concludes that case number 16-10499 is
suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
    **
       The Honorable Brian M. Morris, United States District Judge for
the District of Montana, sitting by designation.
2                UNITED STATES V. BUENROSTRO

                            SUMMARY***


           18 U.S.C. § 3582(c)(2) / 28 U.S.C. § 2255

    The panel affirmed the district court’s denial of Jose Luis
Buenrostro’s motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2), and the district court’s denial of his motion to
vacate his sentence under 28 U.S.C. § 2255, following
President Obama’s commutation of his sentence from life in
prison without release to 360 months in prison.

    The panel held that Buenrostro is ineligible for a sentence
modification under § 3582(c)(2) because he was originally
sentenced based on a statutory mandatory minimum, not
based on a sentencing range. Explaining that a presidential
commutation does not overturn the sentence imposed by the
sentencing court, the panel wrote that President Obama’s
commutation was not based on a recalculation of a sentencing
range.

   The panel held that President Obama’s commutation of
Buenrostro’s sentence did not create a new judgment, and that
Buenrostro therefore remains subject to the restrictions on
second-or-successive motions under § 2255.




    ***
        This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V. BUENROSTRO                    3

                         COUNSEL

John P. Balazs (argued), Sacramento, California, for
Defendant-Appellant.

Owen Roth (argued) and Jason Hitt, Assistant United States
Attorneys; Camil A. Skipper, Appellate Chief; Phillip A.
Talbert, United States Attorney; United States Attorney’s
Office, Sacramento, California; for Plaintiff-Appellee.


                         OPINION

W. FLETCHER, Circuit Judge:

    Defendant Jose Luis Buenrostro brings two appeals.
First, in case number 16-10499, he appeals the district court’s
denial of his motion for a sentence modification under
18 U.S.C. § 3582(c)(2). Second, in case number 17-15453,
he appeals the district court’s denial of his motion to vacate
his sentence under 28 U.S.C. § 2255. Both appeals turn on
the effect of President Obama’s commutation of Buenrostro’s
sentence in 2016 from life in prison without release to
360 months in prison. We have jurisdiction in the first appeal
under 28 U.S.C. § 1291 and in the second appeal under
28 U.S.C. § 2253. We affirm in both.

                        I. Background

   On June 26, 1996, Buenrostro was convicted of
conspiracy to manufacture more than thirty-one kilograms of
methamphetamine in violation of 21 U.S.C. §§ 846,
841(a)(1). See Buenrostro v. United States, 697 F.3d 1137,
1138 (9th Cir. 2012).
4             UNITED STATES V. BUENROSTRO

    Before the conviction at issue in this case, Buenrostro had
been convicted of, among other things, distribution of a
controlled substance (cocaine) and possession of cocaine for
sale. Both were felony convictions. On May 16, 1996, and
June 6, 1996, the government filed informations pursuant to
21 U.S.C. § 851 charging Buenrostro’s prior felony drug
convictions as sentencing enhancements.

    Because Buenrostro had “two or more prior convictions
for a felony drug offense,” he was subject to a “mandatory
term of life imprisonment without release.” See 21 U.S.C.
§ 841(b)(1)(A)(viii). The federal Sentencing Guidelines
otherwise prescribed a sentencing range of 360 months to life.
Buenrostro was sentenced to life in prison without release on
January 8, 1997.

    On September 13, 1999, Buenrostro filed a timely motion
to vacate his sentence under 28 U.S.C. § 2255. The district
court denied the motion, and we affirmed. See United States
v. Buenrostro, 163 Fed. App’x 524, 525 (9th Cir. Jan. 17,
2006) (unpublished).

   On December 18, 2006, Buenrostro learned that the
government had made a plea offer that his attorney failed to
communicate to him. On December 12, 2007, Buenrostro
moved in the district court to reopen his § 2255 proceedings
pursuant to Federal Rule of Civil Procedure 60(b) in order to
make a claim of ineffective assistance of counsel. The court
denied the motion as an impermissible second-or-successive
motion under § 2255, and we affirmed. See United States v.
Buenrostro, 638 F.3d 720, 721 (9th Cir. 2011) (per curiam).
We held that Buenrostro’s “new claim neither bears on his
innocence of the underlying crime nor turns on a new rule of
              UNITED STATES V. BUENROSTRO                   5

constitutional law,” as required by 28 U.S.C. § 2255(h). Id.
at 723.

    Next, Buenrostro sought leave from this court to file a
second or successive motion under § 2255(h)(2) in light of
Martinez v. Ryan, 566 U.S. 1 (2012), Missouri v. Frye,
566 U.S. 134 (2012), and Lafler v. Cooper, 566 U.S. 156
(2012). See Buenrostro, 697 F.3d at 1139. We denied leave,
concluding that none of these cases announced a “new rule of
constitutional law.” Id. at 1140. We also noted that Martinez
“is inapplicable to federal convictions and thus inapplicable
to Buenrostro’s application.” Id.

   On August 3, 2016, President Obama commuted
Buenrostro’s sentence to 360 months in prison.

    In light of the commutation, Buenrostro sought a
modification of his sentence under 18 U.S.C. § 3582(c)(2).
To be eligible, Buenrostro must have been sentenced “based
on a sentencing range that has subsequently been lowered.”
18 U.S.C. § 3582(c)(2). He argued that the commutation
nullified the mandatory minimum sentence he received, such
that he was, in effect, newly sentenced “based on a sentencing
range.” He further argued that his sentencing range had been
lowered by the federal Sentencing Commission pursuant to
Amendment 782, which modified the offense levels in the
Guidelines’ drug quantity table. The district court denied the
motion, concluding that regardless of President Obama’s
commutation, Buenrostro was not sentenced “based on a
sentencing range,” as required by Section 3582(c)(2).
Buenrostro timely appealed in case number 16-10499.

   Separately, Buenrostro brought a motion under § 2255,
contending that he could raise his ineffective assistance of
6            UNITED STATES V. BUENROSTRO

counsel claim in a motion to vacate the “new judgment”
created by the commutation, citing Magwood v. Patterson,
561 U.S. 320 (2010). The district court concluded that a
“commutation is not a new sentence or judgment.” The court
denied the motion as an impermissible second-or-successive
motion under § 2255. Buenrostro timely appealed in case
number 17-15453.

                   II. Standard of Review

    We review de novo whether the district court has
jurisdiction to modify Buenrostro’s sentence under 18 U.S.C.
§ 3582(c)(2). United States v. Mercado-Moreno, 869 F.3d
942, 953 (9th Cir. 2017). We review de novo the district
court’s determination that the Section 2255 motion is “second
or successive.” United States v. Lopez, 577 F.3d 1053, 1059
(9th Cir. 2009).

                       III. Discussion

        A. No. 16-10499: Modification of Sentence

    A court may modify a criminal sentence “in the case of a
defendant who has been sentenced . . . based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). A defendant is
sentenced “based on a sentencing range” if “the range was a
basis for the court’s exercise of discretion in imposing a
sentence. To ‘base’ means ‘[t]o make, form, or serve as a
foundation for,’ or ‘[t]o use (something) as the thing from
which something else is developed.’” Hughes v. United
States, 138 S. Ct. 1765, 1775 (2018) (quoting Black’s Law
Dictionary 180 (10th ed. 2014)).
              UNITED STATES V. BUENROSTRO                   7

    If a defendant was not originally sentenced “based on a
sentencing range,” he is not eligible for a sentence
modification under Section 3582(c)(2). See United States v.
Paulk, 569 F.3d 1094, 1095 (9th Cir. 2009) (per curiam). A
sentence is not “based on a sentencing range” when it is
based instead on a statutory mandatory minimum that exceeds
the otherwise applicable Guidelines range. See Koons v.
United States, 138 S. Ct. 1783, 1788 (2018). In such a case,
the sentencing court must “discard” the Guidelines range “in
favor of the mandatory minimum sentence[],” id. at 1790, and
the range “play[s] no relevant part in the judge’s
determination of the defendant’s ultimate sentence,” id. at
1788.

    The same is true even if a statutory mandatory minimum
falls within the otherwise applicable Guidelines range. In
United States v. Mullanix, 99 F.3d 323 (9th Cir. 1996), we
held that a defendant was ineligible for a sentence
modification because he was subject to a “statutorily required
minimum of sixty months.” Id. at 324. Although the
statutory minimum fell within the Guidelines range of fifty-
seven to seventy-one months, we nevertheless held that “he
was sentenced pursuant to the statutorily required minimum,
which was not affected by the change in the marijuana
equivalency tables. Therefore, the district court had no
authority to reduce Mullanix’s sentence under § 3582(c)(2).”
Id.

    Buenrostro was originally sentenced “based on” a
statutory mandatory minimum. His original sentence was not
based on a sentencing range, nor indeed was President
Obama’s commutation based on a recalculation of that range.
Like a full pardon, a presidential commutation does not
overturn the sentence imposed by the sentencing court. It
8             UNITED STATES V. BUENROSTRO

simply “mitigates or sets aside punishment.” Nixon v. United
States, 506 U.S. 224, 232 (1993) (quoting Black’s Law
Dictionary 1113 (6th ed. 1990)) (emphasis removed).

   Buenrostro is therefore ineligible for a sentence
modification, and the district court properly denied his
motion.

B. No. 17-15453: Commutation Is Not a “New Judgment”

    Section 2255 authorizes a “prisoner in custody under
sentence of a court established by Act of Congress” to “move
the court which imposed the sentence to vacate, set aside or
correct the sentence” based on a violation of federal law.
28 U.S.C. § 2255(a). However, the statute places restrictions
on “second or successive” motions. 28 U.S.C. § 2255(h). A
“second or successive” motion may not be brought unless it
relies on “(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty
of the offense; or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” Id.

    However, not all second-in-time motions qualify under
§ 2255 as “second or successive” motions that must satisfy
the criteria of § 2255(h). Magwood, 561 U.S. at 332
(describing “second or successive” as a “term of art” (quoting
Slack v. McDaniel, 529 U.S. 473, 486 (2000))). To be
“second or successive,” the second-in-time motion must
challenge the same judgment as the earlier motion. Id. at
341–42. Thus, a second-in-time motion challenging a “new
or intervening judgment[]” is not second or successive within
              UNITED STATES V. BUENROSTRO                     9

the meaning of § 2255(h). Clayton v. Biter, 868 F.3d 840,
843 (9th Cir. 2017).

    In criminal cases, “[t]he sentence is the judgment.”
Gonzalez v. Sherman, 873 F.3d 763, 769 (9th Cir. 2017)
(quoting Burton v. Stewart, 549 U.S. 147, 156 (2007) (per
curiam)) (emphasis in original); see also Wentzell v. Neven,
674 F.3d 1124, 1127–28 (9th Cir. 2012) (“[W]e treat the
judgment of conviction as one unit, rather than . . . treating
the conviction and sentence for each count separately.”). A
judicial resentencing may thus produce a new judgment.
Gonzalez, 873 F.3d at 769 (“[A] change to a defendant’s
sentence is a change to his judgment.”). A new judgment
may be challenged without regard to the limitation on second-
or-successive petitions “even if the [second-in-time] petition
challenges only undisturbed portions of the original
judgment.” Id. at 768 (emphasis removed).

    Buenrostro argues that President Obama’s commutation
changed his sentence and thereby created a new judgment.
But not every change to a criminal sentence creates a new
judgment. See, e.g., Sherrod v. United States, 858 F.3d 1240,
1242 (9th Cir. 2017) (holding that a sentence modification
under 18 U.S.C. § 3582(c)(2) does not). To create a new
judgment, a change to a sentence must be accompanied by a
legal invalidation of the prior judgment. See id. (noting that
a Section 3582(c)(2) modification is “limited” in that “[t]he
penalty goes down, but the original judgment is not declared
invalid” (quoting White v. United States, 745 F.3d 834, 836
(7th Cir. 2014))); Gonzalez, 873 F.3d at 770 (emphasizing
that the court’s correction of the awarded presentence credits
“replaces an invalid sentence with a valid one”). The
essential criterion is legal invalidation of the prior judgment,
not the imposition of a new sentence. This may be seen in
10            UNITED STATES V. BUENROSTRO

Magwood, where the defendant received the same sentence
upon resentencing. 561 U.S. at 326.

    A presidential commutation does not invalidate the prior
court-imposed judgment. The power to commute sentences
derives from the power to “grant Reprieves and Pardons.”
Schick v. Reed, 419 U.S. 256, 260 (1974) (quoting U.S.
Const. Art. II, § 2, cl. 1). The pardon is “an act of grace” by
the Executive that “exempts the individual, on whom it is
bestowed, from the punishment the law inflicts for a crime he
has committed.” United States v. Wilson, 32 U.S. 150, 160
(1833). “[T]he granting of a pardon is in no sense an
overturning of a judgment of conviction by some other
tribunal; it is ‘[a]n executive action that mitigates or sets
aside punishment for a crime.’” Nixon, 506 U.S. at 232
(quoting Black’s Law Dictionary 1113 (6th ed. 1990))
(emphasis in original). The same is true of commutations.
President Obama’s commutation of Buenrostro’s sentence
thus does not create a new judgment such that he is no longer
subject to the restrictions on second-or-successive motions.

     AFFIRMED.
