United States v. Figueredo

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 9, 1998
• Docket: 97-1262
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 9 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, vs. No. 97-1262 (D.C. No. 96-M-1670) JORGE ALBERTO FIGUEREDO, aka (D. Colo.) George Figueredo,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before BRORBY, EBEL, and KELLY, Circuit Judges. **

Mr. Figueredo, appearing pro se, seeks to appeal from the denial of a

second or successive motion under 28 U.S.C. § 2255 to vacate, correct or set

aside his sentence. He contends that Amendment 518 to the Sentencing

Guidelines, modifying application note 12 of the commentary to USSG § 2D1.1,

should be given retroactive effect, see United States v. Felix, 87 F.3d 1057, 1060

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument. (9th Cir. 1996) (direct appeal after resentencing), and his sentence thereby

reduced pursuant to 18 U.S.C. § 3582(c)(2). Amendment 518 is not listed in

USSG § 1B1.10(c) as retroactive and it does not entitle Mr. Figueredo to

resentencing in a successive collateral proceeding involving his May 1992

sentence. See United States v. Drath, 89 F.3d 216, 217 (5th Cir. 1996); see also

United States v. Ynfante, 78 F.3d 677, 682 n.4 (D.C. Cir. 1996). We need not

resolve the appeal on this ground because a second or successive § 2255 motion is

not permitted to be filed in the district court absent authorization from the court

of appeals. See 28 U.S.C. §§ 2244(b)(3)(A); 2255; Felker v. Turpin, 116 S. Ct.

2333, 2340 (1996). Although Mr. Figueredo filed two motions directly or

indirectly seeking successive § 2255 relief, the district court lacked jurisdiction to

entertain them, and we therefore vacate its orders filed on May 28, 1997 and June

25, 1997, resolving those motions. Rather than remand to the district court with

instructions to transfer the motions to the court of appeals for proper

authorization to file, see Coleman v. United States, 106 F.3d 339, 341 (10th Cir.

1997), we construe Mr. Figueredo’s appeal as an application for leave to file a

second or successive § 2255 motion in the district court, and deny it, see Pease v.

Klinger, 115 F.3d 763, 764 (10th Cir. 1997).

-2- Background

Mr. Figueredo was convicted of conspiracy to distribute five kilograms or

more of cocaine, 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A) and sentenced to 145

months imprisonment. That conviction was affirmed on direct appeal. See

United States v. Figueredo, No. 92-1142, (10th Cir. Oct. 15, 1993) (unpub. order

and judgment). He subsequently filed a § 2255 motion on July 12, 1996, based on

the sole ground of ineffective assistance of counsel. The district court denied the

motion. See D. Ct. Judgment filed Sept. 10, 1996. On April 28, 1997, Mr.

Figueredo filed a motion to correct sentence, see Fed. R. Crim. P. 35, that the

district court denied. See D. Ct. Order filed May 9, 1997. On May 21, 1997, Mr.

Figueredo sought reconsideration of that order relying in part on § 2255. The

district court viewed this as a second motion under § 2255 and denied relief. See

D. Ct. Order filed May 28, 1997. Mr. Figueredo then sought relief under Fed. R.

Civ. P. 60(b). See Motion filed June 23, 1997. The district court denied relief.

See D. Ct. Order filed June 25, 1997. In response to Mr. Figueredo’s notice of

appeal and request for a certificate of appealability filed July 11, 1997, the

district court denied the certificate. See D. Ct. Order filed July 15, 1997.

-3- Discussion

Amendment 518 to the Sentencing Guidelines was effective November 1,

1995, and plainly could have been raised in Mr. Figueredo’s first § 2255 motion

filed in July 1996. See In re Sims, 111 F.3d 45, 47-48 (6th Cir. 1997) (movant

not entitled to file a second § 2255 motion where change in Sentencing Guideline

occurred prior to denial of first § 2255 petition). Mr. Figueredo has not

demonstrated that his two motions before the district court rest upon

(1) newly discovered evidence that, if proven and viewed in the 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.

28 U.S.C. § 2255; see 28 U.S.C. § 2243(b)(3)(B) (required certification by three-

judge panel of the court of appeals). The amendment of an application note to the

Sentencing Guidelines simply does not implicate a new rule of constitutional law.

Mr. Figueredo’s appeal (including his motion for a certificate of

appealability) is construed as an application to file successive § 2255 motions and

is DENIED. The district court’s orders of May 28, 1997 and June 23, 1997

denying relief are VACATED, and we REMAND to the district court with

instructions to DISMISS Mr. Figueredo’s May 21, 1997 and June 23, 1997 § 2255

motions.

-4- IT IS SO ORDERED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

-5-