United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. DISTRICT SENIOR JUDGE
case comes before the court on the Mr. Quarry's motion
for relief under 28 U.S.C. § 2255. ECF# 873. Following a
nine-day jury trial, James Wardell Quary was convicted in
March of 1997 of 80 federal counts of drug and drug-related
offenses. He was sentenced to a total term of life plus five
years consecutive. His convictions were affirmed on direct
appeal. United States v. Quary, 188 F.3d 520, 1999
WL 546999 (10th Cir.), cert. denied, 528 U.S. 1033
(1999). He filed a motion to vacate or correct sentence under
28 U.S.C. § 2255 that was denied by the district court.
(Dk. 742). “Because his arguments fl[ied] in the face
of well-accepted precedent, ” the Tenth Circuit denied
a certificate of appealability. United States v.
Quary, 60 Fed.Appx. 188, 2003 WL 256900 (10th Cir.
2003). The district court denied in 2008 Mr. Quary's
pro se motion to modify sentence pursuant to 18
U.S.C. § 3582(c)(2). (Dk. 830). In 2012, the court
denied Mr. Quary's request for appointment of counsel, as
he lacked a viable argument for relief under §
3582(c)(2). (Dk. 866). In January of 2014, Mr. Quarry filed a
“Motion to Dismiss” the indictment for violation
of his due process rights. ECF# 870. The court did not
construe the motion as seeking relief under 28 U.S.C. §
2255 and denied motion as an untimely request for relief
under Fed. R. Crim. P. 12(b)(3). ECF# 871.
last activity in Mr. Quarry's case, prior to his pending
motion, was a court order filed pursuant to 18 U.S.C. §
3582(c)(2). ECF# 872. Because of an applicable retroactive
guideline sentencing range reduction, the court reduced the
defendant's sentence of imprisonment from life plus five
years consecutive to 360 months plus five
years consecutive or 420 months. Mr. Quarry argues that
because of this § 3582(c)(2) order, his legal avenue for
filing another § 2255 motion has been revived. Mr.
Quarry's argument is without legal merit.
a federal inmate may file “a second or successive
motion” under § 2255, the inmate must obtain
authorization from a panel of the circuit of appeals to
proceed based on one of two narrow grounds in § 2255(h).
Stanko v. Davis, 617 F.3d 1262, 1265 (10th Cir.
2010), cert. dismissed, 562 U.S. 1131 (2011). If no
prior authorization is obtained, the district court is
without jurisdiction to consider the § 2255 motion.
Id. The Supreme Court has held that the term,
“second or successive, ” is a “term of
art” and “does not encompass all habeas
petitions filed second or successively in time.”
Id. at n. 2 (citing Magwood v. Patterson,
561 U.S. 320, 332 (2010)). In Magwood, the Supreme
Court held that “where, . . ., there is a new judgment
intervening between the two habeas petitions, an application
challenging the resulting new judgment is not ‘second
or successive' at all.” 561 U.S. at 341-42.
Consequently, when a defendant is resentenced as a result of
his first § 2255 motion, the defendant's second
§ 2255 “is not a ‘second or successive'
petition for the purposes of § 2255(h) because it
relates to a new sentence.” United States v.
McGaughy, 670 F.3d 1149, 1159 n.7 (10th Cir.2012);
see, e.g., United States v. Travonn Leon Burtons,
___ Fed.Appx. ___, 2017 WL 3531399, at *1 (10th Cir. Aug. 17,
2017) (Not a “second or successive” motion when
the defendant's judgment and sentence was vacated on the
Quarry argues that the court's 3582(c)(2) order entered
on August 4, 2015, (ECF# 872), that reduced his sentence is
an “amended judgment” which allows him to file a
new § 2255 motion pursuant to Magwood. He
concludes that, “[t]his court has jurisdiction to
entertain Mr. Quary's instant motion, and prior
authorization from the Tenth Circuit is ‘unnecessary
because of this  resentencing.'” ECF# 873, p.
2 (citing Tillman v. Bigelow, 672 Fed.Appx. 803
(10th Cir. 2016)).
782 to the United States Sentencing Guidelines reduced the
offense levels for many drug offenses, and the Sentencing
“Commission made Amendment 782 retroactive, and thus
available as a potential basis for a sentence reduction
pursuant to § 3582(c)(2). United States v.
Gutierrez, 859 F.3d 1261, 1264 (10th Cir. 2017) (citing
U.S.S.G. supp. to app. C, amend. 788, Reason for Amendment,
at 86). In Gutierrez, the court noted:
Section 3582(c)(2) proceedings are a creature unto
themselves: they “do not constitute a full resentencing
of the defendant, ” U.S.S.G. § 1B1.10(a)(3);
“[r]ather, they ‘permit a sentence reduction
within the narrow bounds established by the Commission,
'” [United States v.] Bonds, 839
F.3d  at 529 [(6th Cir. 2016)](alteration omitted)
(emphasis added) (quoting Dillon v. United States,
560 U.S. 817, 831, 130 S.Ct. 2683');">130 S.Ct. 2683, 177 L.Ed.2d 271 (2010));
see also 18 U.S.C. § 3582(c)(2) (allowing a
sentence reduction only “if such a reduction is
consistent with applicable policy statements issued by the
Sentencing Commission”). These “narrow
bounds” are set forth in § 1B1.10. See
U.S.S.G. § 1B1.10(a)(1) (“As required by 18 U.S.C.
[§] 3582(c)(2), any ... reduction in the defendant's
term of imprisonment shall be consistent with this policy
statement.”). As discussed, subsection (b)(1) of §
1B1.10 prescribes the process by which district courts must
determine a defendant's amended Guidelines range for
sentence-reduction purposes. Specifically, it states that
the court shall determine the amended guideline range that
would have been applicable to the defendant if the
amendment(s) ... listed in subsection (d) had been in effect
at the time the defendant was sentenced. In making such
determination, the court shall substitute only the amendments
listed in subsection (d) for the corresponding guideline
provisions that were applied when the defendant was sentenced
and shall leave all other guideline application decisions
Id. § 1B1.10(b)(1) (emphases added). Amendment
782 is one of the “Covered Amendments” listed in
subsection (d); Amendment 742 is not. See id. §
United States v. Gutierrez, 859 F.3d at 1268-69.
“The two-step process under § 3582(c)(2)
‘authorize[s] only a limited adjustment to an otherwise
final sentence and not a plenary resentencing
proceeding.'” United States v. Piper, 839
F.3d 1261, 1266 (10th Cir. 2016) (quoting Dillon v.
United States, 560 U.S. 817, 826 (2010)),
cert. denied, 137 S.Ct. 2263 (2017). “[A]
district court proceeding under § 3582(c)(2) does not
impose a new sentence in the usual senses.”
Dillon, 560 U.S. at 827. “Section 3582(c)(2)
invites a motion for a sentencing modification, not a new
sentencing proceeding.” United States v.
Verdin-Garcia, 824 F.3d 1218, 1221 (10th Cir.
2016)(citation omitted), cert. denied, 137 S.Ct.
2263 (2017). The court's “limited
jurisdiction” under § 3582(c)(2) “is a
narrow exception to the usual rule of finality of
judgments.” United States v. Gay, 771 F.3d
681, 686 (10th Cir. 2014)(internal quotation marks and
citation omitted). The question is whether a sentence
reduction pursuant to § 3582(c)(2) qualifies as an
amended judgment and triggers a new period for filing for
§ 2255 relief.
circuit courts to address this question have held that §
3582(c)(2) orders do not qualify as intervening new judgment
under Magwood. Most recently, the Ninth Circuit
Because the court makes only a limited adjustment to the
sentence, and claims of error at the original sentencing are
“outside the scope of the proceeding authorized by
§ 3582(c)(2), ” Dillon [v. United
States], 560 U.S.  at 831, 130 S.Ct. 2683');">130 S.Ct. 2683 [(2010)],
we join our sister circuits in holding that a §
3582(c)(2) sentence reduction does not qualify as a new,
intervening judgment. See United States v. Jones,
796 F.3d 483, 486 (5th Cir. 2015) (holding a sentence
reduction under § 3582(c)(2) “does not wipe clean
the slate of habeas applications that [a prisoner] has
previously filed”); White [v. United
States], 745 F.3d  at 837 [(7th Cir.)] (holding
“Magwood does not reset the clock or the
count, for purposes of § 2244 and § 2255, when a
prisoner's sentence is reduced as the result of a
retroactive change to the Sentencing Guidelines”).
It follows that Sherrod must obtain authorization from this
court to proceed on a second or successive § 2255
Sherrod v. United States, 858 F.3d 1240, 1242 (9th
Cir. 2017); see Dyab v. United States, 855 F.3d 919,
923 (8th Cir. 2017) (Pointing to the line of authorities
holding that, “[n]ot every change to a judgment results
in a new sentence or judgment that wipes clean the slate of
post-conviction motions previously filed, ” the panel
cites the example of § 3582(c)(2) including the case of
Jones, 795 F.3d at 486), petition for cert.
filed, Jul. 17, 2017 (No. 17-5268); Crangle v.
Kelly, 838 F.3d 673, 678 (6th Cir. 2016)(Distinguishes
its conclusion from “a line of cases in which a limited
resentencing benefits the prisoner, such as in a
sentence-reduction proceeding under 18 U.S.C. §
3582(c)” which “do not disturb the underlying
initial judgment, which continues to ‘constitute a
final judgment.' 18 U.S.C. § 3582(b).”) While
the Tenth Circuit does not appear to have yet addressed this
issue, the court believes it would follow this exclusive line
of circuit precedent which is ...