United States v. Quary , 881 F.3d 820 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 6, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3193
(D.C. Nos. 5:14-CV-04003-SAC &
JAMES WARDELL QUARY, 5:95-CR-40083-SAC-8)
(D. Kan.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before TYMKOVICH, Chief Judge, LUCERO and HARTZ, Circuit Judges.
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PER CURIAM.
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James Wardell Quary, a federal prisoner appearing pro se, seeks a certificate of
appealability (COA) to challenge the district court’s dismissal of his motion for relief
under 28 U.S.C. § 2255 for lack of jurisdiction. We deny a COA and dismiss this matter.
After a jury convicted Quary of multiple drug offenses, he received a life sentence.
He also received a consecutive term of 60 months’ imprisonment for a firearm offense.
See 18 U.S.C. § 924(c). His convictions and sentences were affirmed on direct appeal.
See United States v. Quary, 188 F.3d 520, 1999 WL 546999 (10th Cir. July 28, 1999)
(unpublished table decision).
After the district court denied his first § 2255 motion, we denied a COA. See
United States v. Quary, 60 F. App’x 188 (10th Cir. 2003). In August 2015, the district
court granted Quary’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) and
reduced his life sentence to a 360-month sentence, resulting in a total sentence of
420 months’ imprisonment including the consecutive term for the firearm offense.
Almost two years later, Quary filed another § 2255 motion. He argued that the
motion was not second or successive because his sentence reduction constituted a new
judgment. The district court rejected this argument—noting the absence of Tenth Circuit
authority on the issue but also the exclusive line of precedent from other circuits—and
determined that Quary’s motion was a second or successive motion for which he needed
authorization. Quary now seeks a COA to appeal that ruling, arguing, as he did in the
district court, that his § 2255 motion is not second or successive due to his intervening
sentence reduction.1
To establish his entitlement to a COA, Quary must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district
court denies a § 2255 motion on procedural grounds, a COA may issue only if “the
prisoner shows, at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and . . . whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
1
Because we conclude that the district court did not have jurisdiction to consider
Quary’s motion, we need not address his argument that he is entitled to equitable tolling.
2
Not every § 2255 motion filed second in time qualifies as “second or successive”
under the Antiterrorism and Effective Death Penalty Act; “[t]he Supreme Court has
described the phrase as a term of art.” Stanko v. Davis, 617 F.3d 1262, 1265 n.2
(10th Cir. 2010) (internal quotation marks omitted). If “there is a new judgment
intervening between the two habeas petitions, an application challenging the resulting
new judgment is not second or successive.” Magwood v. Patterson, 561 U.S. 320,
341-42 (2010) (citation and internal quotation marks omitted).
This court has not addressed the precise issue of whether an order reducing a
sentence under § 3582(c)(2) constitutes a new, intervening judgment for purposes of
determining whether a § 2255 motion is second or successive. However, the Supreme
Court has made clear that § 3582(c)(2) establishes a narrow exception to the rule that “[a]
federal court generally may not modify a term of imprisonment once it has been
imposed.” Dillon v. United States, 560 U.S. 817, 819 (2010) (internal quotation marks
omitted). “[A] district court proceeding under § 3582(c)(2) does not impose a new
sentence in the usual sense.” Id. at 827. Rather, by its plain language, the statute
“authorize[s] only a limited adjustment to an otherwise final sentence and not a plenary
resentencing proceeding.” Id. at 826.
In United States v. Piper, 839 F.3d 1261, 1266 (10th Cir. 2016), and United States
v. Verdin-Garcia, 824 F.3d 1218, 1222 (10th Cir. 2016), we applied Dillon in deciding
that a district court does not abuse its discretion when it denies a sentence reduction
under § 3582(c)(2) without addressing a prisoner’s policy-based arguments. We noted
that in a sentencing proceeding, a court is required to explain its reasons for the sentence
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it imposes, see 18 U.S.C. § 3553(c), yet in a sentence-reduction proceeding, a court is
required merely to consider the relevant factors, see id. § 3553(a), whether or not it grants
a reduction. Piper, 839 F.3d at 1267. Thus, with respect to motions for a sentence
reduction, we found “no basis to impose upon the district court a requirement to address
every nonfrivolous, material argument raised by the defendant” in such proceedings.
Verdin-Garcia, 824 F.3d at 1222. The established principle of distinguishing sentence
reductions from sentencings in this court supports our holding today that the former do
not qualify as new, intervening judgments.
Other circuits that have addressed this issue have uniformly reached the same
conclusion. See, e.g., Sherrod v. United States, 858 F.3d 1240, 1242 (9th Cir. 2017);
United States v. Jones, 796 F.3d 483, 487 (5th Cir. 2015); White v. United States,
745 F.3d 834, 837 (7th Cir. 2014).
In White, the Seventh Circuit distinguished White’s § 3582(c) sentence reduction
from Magwood’s resentencing. 745 F.3d at 836. White requested and received a
sentence reduction after the Sentencing Commission adopted a retroactive amendment
cutting the offense levels for crack-cocaine offenses (as did Quary), while Magwood was
sentenced anew after demonstrating in his initial collateral attack that his original
sentence violated the Constitution. Id. at 835-36. The White court observed that at a
resentencing, a district judge may receive evidence and reopen issues decided in the
original sentencing before holding a hearing and pronouncing a new sentence. Id. at 836.
By contrast, a court granting a sentence reduction “takes as established the findings and
calculations that led to the sentence and changes only the revised Guideline, leaving
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everything else the same.” Id. In other words, “[t]he penalty goes down, but the original
judgment is not declared invalid.” Id. Therefore, the Seventh Circuit concluded,
“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.” Id. at 837.
In Jones, the Fifth Circuit noted that Magwood does not define the term “new
judgment” but held that Jones “received a reduced sentence [under § 3582(c)(2)], not a
new one.” 796 F.3d at 485. The court determined that the sentence-reduction procedure
“does not in any way resemble a full resentencing” because it “leaves undisturbed the
findings and calculations that formed the recommended sentencing range, changing only
the revised Guideline.” Id. at 486.
And in Sherrod, the Ninth Circuit reasoned that a sentence reduction under
§ 3582(c)(2) is not akin to a resentencing, stating that “[t]he Supreme Court has
cautioned that the exception to sentencing finality in § 3582(c)(2) is narrow in scope and
is intended to authorize only a limited adjustment to an otherwise final sentence and not a
plenary resentencing proceeding.” 858 F.3d at 1242 (brackets and internal quotation
marks omitted). Noting the decisions from other circuits discussed above, the Ninth
Circuit decided it would “join our sister circuits in holding that a § 3582(c)(2) sentence
reduction does not qualify as a new, intervening judgment.” Id.
The rationale of these opinions is persuasive. Moreover, given this court’s
precedents distinguishing sentence reductions from sentencings as well as the uniform
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rejection of Quary’s argument in other circuits, we conclude that jurists of reason would
not find the district court’s procedural ruling debatable.
Accordingly, we deny a COA. Quary’s motion for leave to proceed on appeal
without prepayment of costs or fees is granted.
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