FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 28, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6011 (D.C. Nos. 5:12-CR-00108-F-1 & JUSTIN TODD HAYNES, 5:17-CV-00945-F) (W.D. Okla.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, BACHARACH and EID, Circuit Judges. _________________________________
Justin Todd Haynes, a federal prisoner proceeding pro se,1 appeals the district
court’s order dismissing his motion for a sentence reduction for lack of jurisdiction.
To the extent Haynes’s motion sought release for “extraordinary and compelling
reasons” under 18 U.S.C. § 3582(c)(1)(A)(i), we exercise jurisdiction pursuant to
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Haynes is pro se, we liberally construe his filings but will not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). 28 U.S.C. § 1291 and affirm. To the extent his motion sought to attack his sentence
and was an unauthorized second or successive 28 U.S.C. § 2255 motion, we deny a
certificate of appealability (COA) under 28 U.S.C. § 2253(c) and dismiss the matter.
BACKGROUND
In 2012, Haynes pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court determined he was an armed
career criminal based on prior convictions and sentenced him to the mandatory
minimum of 180 months’ imprisonment. Haynes did not appeal.
In 2017, Haynes filed a 28 U.S.C. § 2255 motion to challenge his sentence
enhancement based on Johnson v. United States, 135 S. Ct. 2551 (2015). The district
court dismissed the motion as time-barred because it was filed more than one year
after Johnson and there was no basis for equitable tolling. Haynes did not appeal.
Since the denial of his first § 2255 motion, Haynes has twice moved this court
for authorization to file a second or successive motion under § 2255(h), the first time
based on Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and the second based on United
States v. Davis, 139 S. Ct. 2319 (2019). This court denied both motions.
In December 2019, Haynes filed a motion to reduce his sentence under
18 U.S.C. § 3582(c)(1)(B) and Federal Rule of Criminal Procedure 35, again arguing
his sentence was illegally enhanced based on Johnson. The district court dismissed
the motion, concluding it did “not fall within the jurisdiction that Rule 35 provides
the court for reducing a sentence” or “within any of the other jurisdictional grants in
section 3582(c) for modifying a sentence.” R. at 56. Haynes did not appeal. Instead,
2 one month later, he filed another motion to reduce his sentence under § 3582(c),
reiterating his argument that his sentence was illegally enhanced and alleging this
constituted “extraordinary and compelling reasons” under § 3582(c)(1)(A)(i). The
district court concluded the statute did not permit resentencing on this basis and
dismissed the motion for lack of jurisdiction. In addition, the court dismissed the
motion and denied a certificate of appealability to the extent Haynes’s motion was
challenging the legality of his sentence and was therefore an unauthorized second or
successive § 2255 motion. Haynes timely appealed.
DISCUSSION
Haynes contends he is suffering “[i]rreparable harm” due to an illegally
enhanced sentence and that he is entitled to immediate resentencing and release.
Aplt. Opening Br. at 4. His appeal fails for several reasons.
First, Haynes moved for a sentence reduction on the grounds that his prior
conviction in Oklahoma for second degree burglary should not have been used to
enhance his sentence and that his illegally enhanced sentence constituted an
“extraordinary and compelling reason[]” under § 3582(c)(1)(A)(i).2 Under that
statute, a district court may reduce a sentence if, after considering any applicable
2 Haynes also argues his prior conviction in Oklahoma for robbery with firearms should not have been used to enhance his sentence. But we do not consider this claim because he did not raise it in his motion in district court and has not argued plain error on appeal. See United States v. Lamirand, 669 F.3d 1091, 1099 n.7 (10th Cir. 2012).
3 sentencing factors in 18 U.S.C. § 3553, it finds “extraordinary and compelling
reasons warrant such a reduction” and the “reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(1)(A)(i). As authorized by 28 U.S.C. § 994(t), the Sentencing Commission
issued a policy statement recognizing four categories of “extraordinary and
compelling reasons” for § 3582(c)(1)(A)(i): “(A) Medical Condition of the
Defendant,” “(B) Age of the Defendant,” “(C) Family Circumstances,” and
“(D) Other Reasons,” defined as “an extraordinary and compelling reason other than,
or in combination with, the reasons described in subdivisions (A) through (C),” “[a]s
determined by the Director of the Bureau of Prisons,” U.S.S.G. § 1B1.13, cmt. n.1.
Haynes argued that the Sentencing Commission’s policy statement was no
longer controlling and that the district court was free to determine what constituted
“extraordinary and compelling reasons” for purposes of a sentence reduction under
§ 3582(c)(1)(A)(i). But the court disagreed, concluding that Haynes’s argument
regarding legal error in the enhancement of his sentence was not one of the categories
recognized by the Sentencing Commission and that it did not qualify as an
extraordinary and compelling reason under § 3582(c)(1)(A)(i).
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 28, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6011 (D.C. Nos. 5:12-CR-00108-F-1 & JUSTIN TODD HAYNES, 5:17-CV-00945-F) (W.D. Okla.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, BACHARACH and EID, Circuit Judges. _________________________________
Justin Todd Haynes, a federal prisoner proceeding pro se,1 appeals the district
court’s order dismissing his motion for a sentence reduction for lack of jurisdiction.
To the extent Haynes’s motion sought release for “extraordinary and compelling
reasons” under 18 U.S.C. § 3582(c)(1)(A)(i), we exercise jurisdiction pursuant to
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Haynes is pro se, we liberally construe his filings but will not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). 28 U.S.C. § 1291 and affirm. To the extent his motion sought to attack his sentence
and was an unauthorized second or successive 28 U.S.C. § 2255 motion, we deny a
certificate of appealability (COA) under 28 U.S.C. § 2253(c) and dismiss the matter.
BACKGROUND
In 2012, Haynes pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court determined he was an armed
career criminal based on prior convictions and sentenced him to the mandatory
minimum of 180 months’ imprisonment. Haynes did not appeal.
In 2017, Haynes filed a 28 U.S.C. § 2255 motion to challenge his sentence
enhancement based on Johnson v. United States, 135 S. Ct. 2551 (2015). The district
court dismissed the motion as time-barred because it was filed more than one year
after Johnson and there was no basis for equitable tolling. Haynes did not appeal.
Since the denial of his first § 2255 motion, Haynes has twice moved this court
for authorization to file a second or successive motion under § 2255(h), the first time
based on Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and the second based on United
States v. Davis, 139 S. Ct. 2319 (2019). This court denied both motions.
In December 2019, Haynes filed a motion to reduce his sentence under
18 U.S.C. § 3582(c)(1)(B) and Federal Rule of Criminal Procedure 35, again arguing
his sentence was illegally enhanced based on Johnson. The district court dismissed
the motion, concluding it did “not fall within the jurisdiction that Rule 35 provides
the court for reducing a sentence” or “within any of the other jurisdictional grants in
section 3582(c) for modifying a sentence.” R. at 56. Haynes did not appeal. Instead,
2 one month later, he filed another motion to reduce his sentence under § 3582(c),
reiterating his argument that his sentence was illegally enhanced and alleging this
constituted “extraordinary and compelling reasons” under § 3582(c)(1)(A)(i). The
district court concluded the statute did not permit resentencing on this basis and
dismissed the motion for lack of jurisdiction. In addition, the court dismissed the
motion and denied a certificate of appealability to the extent Haynes’s motion was
challenging the legality of his sentence and was therefore an unauthorized second or
successive § 2255 motion. Haynes timely appealed.
DISCUSSION
Haynes contends he is suffering “[i]rreparable harm” due to an illegally
enhanced sentence and that he is entitled to immediate resentencing and release.
Aplt. Opening Br. at 4. His appeal fails for several reasons.
First, Haynes moved for a sentence reduction on the grounds that his prior
conviction in Oklahoma for second degree burglary should not have been used to
enhance his sentence and that his illegally enhanced sentence constituted an
“extraordinary and compelling reason[]” under § 3582(c)(1)(A)(i).2 Under that
statute, a district court may reduce a sentence if, after considering any applicable
2 Haynes also argues his prior conviction in Oklahoma for robbery with firearms should not have been used to enhance his sentence. But we do not consider this claim because he did not raise it in his motion in district court and has not argued plain error on appeal. See United States v. Lamirand, 669 F.3d 1091, 1099 n.7 (10th Cir. 2012).
3 sentencing factors in 18 U.S.C. § 3553, it finds “extraordinary and compelling
reasons warrant such a reduction” and the “reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(1)(A)(i). As authorized by 28 U.S.C. § 994(t), the Sentencing Commission
issued a policy statement recognizing four categories of “extraordinary and
compelling reasons” for § 3582(c)(1)(A)(i): “(A) Medical Condition of the
Defendant,” “(B) Age of the Defendant,” “(C) Family Circumstances,” and
“(D) Other Reasons,” defined as “an extraordinary and compelling reason other than,
or in combination with, the reasons described in subdivisions (A) through (C),” “[a]s
determined by the Director of the Bureau of Prisons,” U.S.S.G. § 1B1.13, cmt. n.1.
Haynes argued that the Sentencing Commission’s policy statement was no
longer controlling and that the district court was free to determine what constituted
“extraordinary and compelling reasons” for purposes of a sentence reduction under
§ 3582(c)(1)(A)(i). But the court disagreed, concluding that Haynes’s argument
regarding legal error in the enhancement of his sentence was not one of the categories
recognized by the Sentencing Commission and that it did not qualify as an
extraordinary and compelling reason under § 3582(c)(1)(A)(i). And because the
court determined Haynes had not shown a basis for resentencing under any of the
provisions in § 3582(c), the court dismissed the motion for lack of jurisdiction. See
United States v. Smartt, 129 F.3d 539, 541 (10th Cir. 1997) (“Unless the basis for
resentencing falls within one of the specific categories authorized by section 3582(c),
the district court lack[s] jurisdiction to consider [defendant’s] request.”).
4 On appeal, Haynes continues to dispute the validity of his enhanced sentence.
But he has not contested the district court’s jurisdictional analysis and has offered no
argument or authority as to how the court erred in its interpretation and application of
§ 3582(c)(1)(A)(i). “We will not review an issue in the absence of reasoned
arguments advanced by the appellant as to the grounds for [his] appeal.” Kelley v.
City of Albuquerque, 542 F.3d 802, 820 (10th Cir. 2008) (internal quotation marks
omitted). Haynes therefore has waived any objection to the court’s dismissal of his
motion seeking a reduced sentence under § 3582(c)(1)(A)(i). See Cisneros v.
Aragon, 485 F.3d 1226, 1233 (10th Cir. 2007) (deeming an issue waived where the
appellant “failed to offer any substantive arguments explaining why the district court
erred in denying the motion”).
Next, the district court noted Haynes’s motion could be construed as a
28 U.S.C. § 2255 motion because it was attacking the validity and legality of his
sentence. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (“The exclusive
remedy for testing the validity of a judgment and sentence, unless it is inadequate or
ineffective, is that provided for in 28 U.S.C. § 2255.” (internal quotation marks
omitted)). But as the district court observed, Haynes previously had filed a § 2255
motion challenging his enhanced sentence, and the district court dismissed that
motion. Haynes therefore needed to obtain authorization from this court before he
could file a second or successive § 2255 motion. See 28 U.S.C. § 2255(h). And
without such authorization, the district court lacked jurisdiction to consider the merits
of the motion. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
5 Because the district court alternatively dismissed Haynes’s motion as an
unauthorized second or successive § 2255 motion, he must obtain a COA. See
United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008) (applying COA
requirement to the dismissal of a an unauthorized second or successive § 2255
motion). And to obtain a COA, he must show, inter alia, “that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Once again, Haynes argues the merits of his underlying claims and insists his
sentence was illegally enhanced. But he does not dispute the district court’s findings
that he previously filed a § 2255 motion and that he did not obtain authorization to
file another one. Nor does he dispute the district court’s conclusion that it lacked
jurisdiction over the motion to the extent it was an unauthorized second or successive
§ 2255 motion. Accordingly, because Haynes has not shown that the district court’s
procedural ruling was debatable, we deny a COA.
CONCLUSION
We affirm the district court’s judgment to the extent Haynes’s motion was
brought under § 3582(c)(1)(A)(i), and we deny a certificate of appealability to the
extent the motion was an unauthorized second or successive § 2255 motion.
Entered for the Court Per Curiam