United States v. Sandchase Cody

998 F.3d 912

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 28, 2021
• Docket: 19-11915
• Status: Published

Opinion

USCA11 Case: 19-11915 Date Filed: 05/28/2021 Page: 1 of 9

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11915 ________________________

D.C. Docket No. 8:10-cr-00035-JDW-TBM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

SANDCHASE CODY,

Defendant-Appellant.

________________________

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

(May 28, 2021)

Before WILLIAM PRYOR, Chief Judge, LUCK, Circuit Judge, and MARKS,* District Judge.

WILLIAM PRYOR, Chief Judge:

* Honorable Emily Coody Marks, Chief United States District Judge for the Middle District of Alabama, sitting by designation. USCA11 Case: 19-11915 Date Filed: 05/28/2021 Page: 2 of 9

This appeal requires us to decide an issue of first impression in our Circuit:

whether a certificate of appealability is required when a federal prisoner obtains

relief through a postconviction motion, 28 U.S.C. § 2255, and appeals the decision

to correct only the illegal sentence instead of performing a full resentencing. We

hold that a certificate of appealability is required to challenge the choice of remedy

under section 2255. And we grant the government’s motion to dismiss this appeal

for lack of jurisdiction.

I. BACKGROUND

Sandchase Cody was convicted in 2010 of two counts of distributing and

possessing with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(C); one

count of being a felon in possession of ammunition, 18 U.S.C. § 922(g)(1); and

one count of possessing with intent to distribute cocaine base, cocaine, and

marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(C). Cody’s felon-in-possession conviction

came with a 15-year mandatory minimum sentence, under the Armed Career

Criminal Act, based on state convictions for sale of cocaine, shooting at a building,

and throwing a missile into an occupied motor vehicle. 18 U.S.C. § 924(e)(1).

Cody’s guideline imprisonment range was 262 to 327 months, and the district court

sentenced him to concurrent 294-month sentences on each of the four counts.

In 2016, we granted Cody’s application for leave to file a second-or-

successive motion to correct his sentence in the light of Johnson v. United States,

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576 U.S. 591 (2015); see 28 U.S.C. § 2255(h)(2). Johnson held that the residual

clause of the Armed Career Criminal Act was unconstitutionally vague. 576 U.S. at

597, 606; 18 U.S.C. § 924(e)(2)(B)(ii). We granted Cody’s application because it

was unclear whether his prior convictions for shooting at a building and throwing a

missile into an occupied motor vehicle were violent felonies under the Act.

Cody filed his motion to vacate, and he and the government stipulated that

his state convictions did not trigger a mandatory minimum sentence under the Act.

Cody asked the district court to vacate the criminal judgment and schedule a

hearing to resentence him on all counts. The government requested that the district

court “at most” correct Cody’s felon-in-possession sentence to remove the armed-

career-criminal enhancement and leave his concurrent sentences on the other three

counts intact.

The district court rejected Cody’s argument that the sentencing-package

doctrine required resentencing on all counts, and it instead corrected Cody’s felon-

in-possession sentence to reflect the 120-month statutory maximum that applied

absent the armed-career-criminal enhancement. 18 U.S.C. § 924(a)(2). The district

court denied Cody a certificate of appealability.

The district court entered a final order in the proceeding under section 2255

and an amended judgment correcting Cody’s sentence in the criminal case on the

same day. Cody filed a notice of appeal from the amended judgment. We issued a

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jurisdictional question asking “whether . . . the notice of appeal reflect[ed] an

intent to appeal the final judgment in the criminal case, the final judgment in the

[section] 2255 proceedings, or both.” Cody then filed a separate notice of appeal

from the final order in the proceeding under section 2255, and he and the

government filed their responses to the jurisdictional question in this appeal.

We denied a certificate of appealability in the section 2255 appeal. We

explained that “reasonable jurists would not debate whether the district court

abused its discretion by correcting Mr. Cody’s sentence without a full resentencing

hearing.” The government then moved to dismiss Cody’s criminal appeal for lack

of appellate jurisdiction based on the absence of a certificate of appealability.

II. STANDARD OF REVIEW

We review de novo our appellate jurisdiction. Thomas v. Phoebe Putney

Health Sys., Inc, 972 F.3d 1195, 1200 (11th Cir. 2020).

III. DISCUSSION

Because Cody does not have a certificate of appealability, we lack

jurisdiction to consider his argument that the district court erred by correcting his

sentence instead of performing a full resentencing. “Unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be taken to the court

of appeals from . . . the final order in a proceeding under section 2255.” 28 U.S.C.

§ 2253(c)(1)(B). “As a result, until a [certificate of appealability] has been issued

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federal courts of appeals lack jurisdiction to rule on the merits of appeals from

habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

The certificate-of-appealability requirement applies not only to an appeal

from the final order in a proceeding under section 2255 but also to an appeal from

an amended criminal judgment, to the extent it raises section 2255 issues. United

States v. Futch, 518 F.3d 887, 894 (11th Cir. 2008). For example, even in an

appeal from a new sentence, “[t]o the extent [a prisoner] appeals the denial of his

[section] 2255 motion as to his conviction, those claims are part of his [section]

2255 proceedings” and we may not consider them without a certificate of

appealability. Id. By contrast, “direct appeal matter[s]” that arise after the

proceeding under section 2255—for example, an argument that the district court

misapplied the sentencing guidelines at a prisoner’s resentencing—do not require a

certificate of appealability. Id. at 895.

Our jurisdiction over Cody’s appeal turns on the extent to which he

challenges errors in his new sentence as opposed to aspects of his proceeding under

section 2255. The only issue Cody raises on appeal is “[w]hether the district court

erred in denying [him] a resentencing hearing on all counts where the district court

vacated [his] unlawful [Armed Career Criminal Act] enhancement.” Specifically,

he argues that the district court erred by correcting his sentence on his felon-in-

possession conviction instead of holding a new resentencing hearing on all counts.

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In other words, the only issue presented in the appeal involves the choice of

statutory remedy. See United States v. Brown, 879 F.3d 1231, 1235 (11th Cir.

2018) (“[Under section 2255,] the court must choose from among four distinct

remedies: (1) discharge the prisoner; (2) resentence the prisoner; (3) grant the

prisoner a new trial; or (4) correct the prisoner’s sentence.”).

It is apparent from the text of section 2255 that a district court’s choice

between correcting a sentence and performing a full resentencing is a part of the

proceeding under that statute. Section 2253 does not specify what it means by “a

proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). But a “proceeding” is

“[t]he regular and orderly progression of a lawsuit, including all acts and events

between the time of commencement and the entry of judgment.” Proceeding,

Black’s Law Dictionary (7th ed. 1999). And the only thing in section 2255 that

matches that description is the series of steps outlined in section 2255(a) and (b).

28 U.S.C. § 2255(a)–(b).

Subsection (a) provides a mechanism by which a prisoner may commence a

proceeding to correct his sentence, and subsection (b) provides a clear outline of

what that proceeding entails. To start, “[u]nless the . . . records of the case

conclusively show that the prisoner is entitled to no relief, the court shall cause

notice thereof to be served upon the United States attorney, grant a prompt hearing

thereon, determine the issues and make findings of fact and conclusions of law[.]”

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Id. § 2255(b). Then, if the court agrees with the prisoner “that there has been such

a denial or infringement of the constitutional rights of the prisoner as to render the

judgment vulnerable to collateral attack,” id., an additional two-part process is

required to remedy the violation. The court “shall vacate and set the judgment

aside and,” “as may appear appropriate,” select one of four remedies: “discharge

the prisoner,” “resentence him,” “grant a new trial,” or “correct the sentence.” Id.

After that choice is made, the proceeding under section 2255 is over.

Of course, each remedy requires the district court to take separate action in

the prisoner’s criminal case, whether that action be as simple as entering a

corrected sentence or as complex as holding a new trial. And our precedents make

clear that the implementation of a chosen remedy on the criminal docket occurs

outside of the proceeding under section 2255 and is subject to review on direct

appeal without a certificate of appealability. Futch, 518 F.3d at 895. An erroneous

resentencing or an erroneous correction following a proceeding under section 2255

is reviewable without a certificate of appealability.

It would be unreasonable to read sections 2253 and 2255 to exclude the

choice of remedy from the scope of a proceeding under section 2255. To do so, we

would have to conclude that “a proceeding under section 2255,” 28 U.S.C.

§ 2253(c)(1)(B), consists of the steps in section 2255(b), except that the proceeding

ends halfway through the two-part remedial process in the final sentence, at a point

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that is not even set apart with a comma, see id. § 2255(b) (“. . . the court shall

vacate and set the judgment aside and shall discharge the prisoner or resentence

him or grant a new trial or correct the sentence as may appear appropriate.”). That

is not a natural reading of the text. The process described in section 2255(b) occurs

in a “proceeding under section 2255,” and that process includes the choice between

four statutory remedies.

Cody’s argument in support of jurisdiction misses the mark. He relies

heavily on the Fourth Circuit’s decision in United States v. Hadden, 475 F.3d 652

(4th Cir. 2007). To be sure, the Fourth Circuit in Hadden did consider a prisoner’s

challenge to the district court’s choice of section 2255 remedy without requiring a

certificate of appealability. Id. at 666–67. And we relied on some of Hadden’s

analysis in our own opinion in Futch. See 518 F.3d at 893–94. But Futch did not

import Hadden wholesale. Although Futch discussed Hadden at length in

connection with the question of when a section 2255 order granting a resentencing

becomes final, id. (discussing Hadden), it cited Hadden only in passing in

connection with its other holdings, id. at 894–95 (citing Hadden, 475 F.3d at 664).

The Fourth Circuit conceded that its interpretation of section 2255 in Hadden was

“somewhat novel,” 475 F.3d at 664, and it never addressed what the phrase “a

proceeding under section 2255” means in section 2253, 28 U.S.C. § 2253(c)(1)(B).

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Hadden does not bind us, and the text of the statute answers the question before us

without resort to Hadden’s contrary holding.

IV. CONCLUSION

We GRANT the government’s motion and DISMISS the appeal for lack of

jurisdiction.