United States v. Jorge Eliecer Bueno-Sierra ( 2018 )


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  •            Case: 17-12418   Date Filed: 01/29/2018   Page: 1 of 11
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-12418
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:93-cr-00567-DTKH-2
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JORGE ELIECER BUENO-SIERRA,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (January 29, 2018)
    Before JILL PRYOR, FAY and HULL, Circuit Judges.
    PER CURIAM:
    Case: 17-12418     Date Filed: 01/29/2018   Page: 2 of 11
    Jorge Bueno-Sierra, a federal prisoner proceeding pro se, appeals the district
    court’s denials of his motions, filed under Federal Rule of Civil Procedure 60(b)(6)
    and (d)(3), seeking relief from the district court’s judgment denying Bueno-
    Sierra’s initial 
    28 U.S.C. § 2255
     motion to vacate his sentence. After review, we
    vacate the district court’s orders denying the Rule 60 motions and remand for the
    district court to dismiss them as unauthorized successive § 2255 motions.
    I. BACKGROUND
    A.    Conviction, Sentence, and Direct Appeal
    In 1994, a jury convicted Bueno-Sierra on these four counts relating to a
    scheme to import cocaine from Colombia to the United States: (1) conspiracy to
    import cocaine into the United States, in violation of 
    21 U.S.C. §§ 952
    (a) and 963;
    (2) conspiracy to possess with intent to distribute cocaine, in violation of 
    21 U.S.C. §§ 841
    (a)(1) and 846; (3) importation of cocaine into the United States, in
    violation of 
    21 U.S.C. §§ 952
    (a), 960(a)(1) and (b), and 
    18 U.S.C. § 2
    ; and
    (4) possession with intent to distribute cocaine, in violation of 
    21 U.S.C. § 841
    (a)(1) and 
    18 U.S.C. § 2
    .
    At sentencing, it was not disputed that Bueno-Sierra’s importation scheme
    involved approximately 467 kilograms of cocaine, which resulted in a base offense
    level of 38 under the Sentencing Guidelines. The district court applied a four-level
    leadership-role increase under U.S.S.G. § 3B1.1, in the calculation of Buneo-
    2
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    Sierra’s total offense level of 42 and guidelines range of 360 months’ to life
    imprisonment. The district court imposed concurrent life terms on each count.
    Bueno-Sierra filed a direct appeal challenging, inter alia, his leadership-role
    increase in the offense level used in his guidelines calculations. In 1996, this Court
    affirmed Bueno-Sierra’s convictions and sentences. See United States v. Bueno-
    Sierra, 
    99 F.3d 375
     (11th Cir. 1996). As to Bueno-Sierra’s role increase, this Court
    concluded, based on the record and “Bueno-Sierra’s extensive role in coordinating
    every aspect of this [cocaine importation] transaction,” that the district court did
    not clearly err. 
    Id. at 380
    .
    B.    First § 2255 Motion in 1998
    In 1998, Bueno-Sierra filed his first § 2255 motion, arguing, among other
    things, that he had received ineffective assistance of counsel when his trial attorney
    failed to request an interpreter to sit at the defense table and assist Bueno-Sierra at
    trial because Bueno-Sierra spoke only Spanish and his trial attorney spoke only
    English and that the district court abused its discretion by failing to appoint an
    interpreter sua sponte.
    In 2000, the district court denied Bueno-Sierra’s § 2255 motion on the
    merits. The district court noted that court interpreters were present throughout the
    proceedings and could have been used for communications with trial counsel. The
    district court noted that Bueno-Sierra had raised a similar claim on direct appeal
    3
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    and lost and concluded that “[t]o the extent that Bueno-Sierra’s present claim is
    phrased differently and not procedurally barred, it is plainly without merit.”
    Bueno-Sierra’s appeal in his first § 2255 case ultimately was dismissed for want of
    prosecution because he failed to pay the required docketing and filing fees.1
    C.     Second § 2255 Motion in 2016
    In 2016, Bueno-Sierra filed a pro se pleading entitled “Holloway
    Letter/Motion/Request,” in which he argued that he had been rehabilitated while
    incarcerated and asked the district court to use its discretion to release him. The
    district court construed the pleading as a § 2255 motion and dismissed it for lack of
    jurisdiction as an unauthorized second or successive § 2255 motion.
    D.     Rule 60 Motions in 2017
    On April 17, 2017, Bueno-Sierra filed a pro se motion for relief from the
    judgment under Rule 60(d)(3). Bueno-Sierra’s Rule 60(d)(3) motion did not
    identify from which judgment or order he was seeking relief. In the Rule 60(d)(3)
    motion, Bueno-Sierra argued that the district court “committed fraud” on the court
    by imposing the four-level leadership role increase in his guidelines calculations at
    1
    In 2015, Bueno-Sierra filed a motion to reduce his sentence, pursuant to 
    18 U.S.C. § 3582
    (c)(2), based on Amendment 782 to the Sentencing Guidelines. Amendment 782 lowered
    the base offense levels for most, but not all, cocaine offenses. See. U.S.S.G. app. C, amend. 782
    (2014). The district court denied Bueno-Sierra’s § 3582(c)(2) motion because, given the
    undisputed large amount of cocaine involved in Bueno-Sierra’s importation scheme, his base
    offense level of 38 and resulting guidelines range of 360 months to life remained the same after
    Amendment 782. On appeal, this Court affirmed the district court. See United States v. Bueno-
    Sierra, 632 F. App’x 605 (11th Cir. 2016).
    4
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    sentencing, by failing to provide an interpreter, and by forcing Bueno-Sierra to
    continue to be represented by trial counsel after there was a complete breakdown in
    communication between Bueno-Sierra and trial counsel that lead to a conflict of
    interest. Bueno-Sierra also contended that the district court should have held an
    evidentiary hearing on his ineffective assistance of counsel claim raised in his first
    § 2255 motion filed in 1998.
    On April 24, 2017, the district court summarily denied Bueno-Sierra’s Rule
    60(d)(3) motion in a paperless order.
    On May 8, 2017, Bueno-Sierra filed a second pro se motion for relief from
    the judgment, this time under Rule 60(b)(6). Bueno-Sierra’s Rule 60(b)(6) motion
    reiterated the fraud-on-the-court arguments made in his Rule 60(d)(3) motion and
    argued that the district court had erred in denying his Rule 60(d)(3) motion.
    Bueno-Sierra also argued that the district court erred by failing to conduct an
    evidentiary hearing on his first § 2255 motion and that his trial counsel had a
    conflict of interest that prevented Bueno-Sierra from receiving effective
    assistance.2
    On May 10, 2017, the district court summarily denied Bueno-Sierra’s Rule
    60(b)(6) motion in a paperless order.
    2
    The precise nature of this alleged conflict of interest is not clear but relates to Bueno-
    Sierra’s assertion that an unidentified third party retained Bueno-Sierra’s trial counsel to
    represent him and that Bueno-Sierra allegedly could not communicate with his English-speaking
    trial counsel during the trial.
    5
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    II. DISCUSSION
    On appeal, Bueno-Sierra argues that the district court abused its discretion
    by denying his Rule 60 motions. Because we conclude that these motions were
    unauthorized successive § 2255 motions, we do not reach the merits of Bueno-
    Sierra’s Rule 60 motions. Rather, we conclude that the district court lacked subject
    matter jurisdiction to deny the Rule 60 motions and remand for the district court to
    dismiss them instead.
    A.    General Principles
    We review for abuse of discretion a district court’s denial of a motion under
    either Rule 60(b)(6) or (d)(3). See Galbert v. W. Caribbean Airways, 
    715 F.3d 1290
    , 1294 (11th Cir. 2013) (Rule 60(b)(6)); Booker v. Dugger, 
    825 F.2d 281
    , 285
    n.10 (11th Cir. 1987) (former Rule 60(b) now found in Rule 60(d)(3)). We review
    de novo whether the district court had subject-matter jurisdiction over a Rule 60
    motion and whether we have jurisdiction to review the denial of a motion.
    Williams v. Chatman, 
    510 F.3d 1290
    , 1293 (11th Cir. 2007).
    Rule 60(b)(1) through (5) permits a district court to set aside an otherwise
    final judgment on a number of specific grounds, such as mistake, newly discovered
    evidence, an opposing party’s fraud, or a void or satisfied judgment. See Fed. R.
    Civ. P. 60(b)(1)-(5). Rule 60(b)(6), the catch-all provision, authorizes a judgment
    to be set aside for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).
    6
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    Rule 60(d)(3) provides that Rule 60 does not limit a district court’s power to “set
    aside a judgment for fraud on the court.” See Fed. R. Civ. P. 60(d)(3).
    Generally, a federal prisoner collaterally attacking his conviction or sentence
    must do so by filing a § 2255 motion. Sawyer v. Holder, 
    326 F.3d 1363
    , 1365
    (11th Cir. 2003). A prisoner who has previously filed a § 2255 motion must apply
    for and receive permission from this Court before filing a successive § 2255
    motion in the district court. 
    28 U.S.C. § 2244
    (a), (b)(3), 2255(h). Without
    authorization from this Court, the district court lacks jurisdiction to consider a
    second or successive § 2255 motion. Farris v. United States, 
    333 F.3d 1211
    , 1216
    (11th Cir. 2003).
    A Rule 60(b) motion cannot be used to circumvent the prohibition on filing
    unauthorized successive post-conviction challenges. See Gonzalez v. Crosby, 
    545 U.S. 524
    , 530-32, 
    125 S. Ct. 2641
    , 2647-48 (2005) (addressing a 
    28 U.S.C. § 2254
    petition); Franqui v. Florida, 
    638 F.3d 1368
    , 1371-73 (11th Cir. 2011) (applying
    Gonzalez to a § 2255 motion). A Rule 60(b) motion from a denial of a § 2255
    motion is considered a successive motion if it “seeks to add a new ground for
    relief” or “attacks the federal court’s previous resolution of a claim on the merits.”
    Gonzalez, 
    545 U.S. at 532
    , 
    125 S. Ct. at 2648
    . However, a Rule 60(b) motion is
    permissible if neither the motion nor the judgment from which it seeks relief
    substantively addressed federal grounds for setting aside the movant’s conviction.
    7
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    Id. at 533
    , 
    125 S. Ct. at 2648
    . For example, a Rule 60(b) motion is proper if it: (1)
    asserts that a federal court’s previous ruling that precluded a merits determination
    was in error; or (2) attacks a defect in the federal proceeding’s integrity, such as
    fraud on the court. See 
    id.
     at 532-35 & nn.4-5, 
    125 S. Ct. at
    2648-50 & nn.4-5.
    This Court has recognized that a Rule 60 motion alleging that there was
    fraud upon the federal court that led to the denial of a § 2255 motion should not be
    treated as a second or successive under 
    28 U.S.C. § 2244
    (b)(4). Gonzalez v. Sec’y
    for the Dep’t of Corrs., 
    366 F.3d 1253
    , 1262, 1278 (11th Cir. 2004) (en banc)
    (addressing a state prisoner’s § 2254 petition alleging fraud on the court under
    Rule 60(b)(3), but explaining that its holding applied equally to federal prisoners’
    § 2255 motions), aff’d sub. nom. Gonzalez v. Crosby, 
    545 U.S. 524
    , 
    125 S. Ct. 2641
     (addressing a different state prisoner’s claim unrelated to Rule 60(b)(3)). 3
    However, this exception applies only to allegations of fraud on the federal habeas
    court, not to allegations of fraud in the trial court of conviction. See id. at 1284-85;
    see also Gonzalez, 
    545 U.S. at
    532 n.5, 
    125 S. Ct. at
    2648 n.5 (citing as an example
    of a defect in the integrity of the federal habeas proceedings a “[f]raud on the
    federal habeas court”).
    3
    When this Court decided Gonzalez, Rule 60(b) contained a “savings clause” that
    provided, inter alia, that the rule did not limit a court’s power to entertain an independent action
    to set aside a judgment for fraud upon the court. See Fed. R. Civ. P. 60(b) (2006). In 2007, Rule
    60 was amended and the savings clause was moved to new subsection (d)(3). See Fed. R. Civ. P.
    60(d)(3) (2007). Thus, a fraud-on-the-court claim can be brought as an independent action
    preserved by Rule 60(d)(3) or as a claim under Rule 60(b)(3) if it involves fraud by an opposing
    party.
    8
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    B.     Bueno-Sierra’s Rule 60 Motions
    Both of Bueno-Sierra’s motions, although couched in terms of Rule 60 and a
    fraud on the court, are more properly regarded as second or successive § 2255
    motions. Bueno-Sierra’s motions sought to raise new substantive claims—namely,
    that his leadership-role increase in his offense level at sentencing was improper,
    that he received ineffective assistance of counsel during trial based on a conflict of
    interest, and that the district court erred by failing to appoint an interpreter to assist
    Bueno-Sierra at trial. Bueno-Sierra’s motions also attacked the district court’s
    previous merits resolution of his ineffective-assistance interpreter claim in his first
    § 2255 motion.4
    Bueno-Sierra argues that his Rule 60 motions were not successive § 2255
    motions because they raised a procedural claim—the failure to hold an evidentiary
    hearing on his original § 2255 motion—rather than substantive claims. Bueno-
    Sierra’s argument ignores the fact that the district court denied Bueno-Sierra’s
    ineffective assistance claim as to a Spanish interpreter because it was “plainly
    without merit.” In other words, the district court concluded that Bueno-Sierra was
    not entitled to relief based on his § 2255 motion and that the record obviated the
    need for the district court to hold an evidentiary hearing on that issue. See 
    28 U.S.C. § 2255
    (b); Rosin v. United States, 
    786 F.3d 873
    , 877 (11th Cir. 2015)
    4
    We note that the district court denied this claim in Bueno-Sierra’s first § 2255 motion
    both because it was procedurally barred and because it was “plainly without merit.”
    9
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    (explaining that the district court need not grant an evidentiary hearing in a § 2255
    proceeding where the motion and the record conclusively show that the prisoner is
    not entitled to relief). To challenge the district court’s decision not to hold an
    evidentiary hearing, Bueno-Sierra necessarily would have to challenge the
    conclusion that his claims were “plainly without merit” based on his § 2255 motion
    and the record. Thus, Bueno-Sierra’s evidentiary-hearing challenge was
    substantive, not procedural.
    To the extent Bueno-Sierra sought to fit his claims within the fraud
    exception, his Rule 60 motions alleged fraud that was committed at trial and
    sentencing, not fraud perpetrated upon the federal court that denied his first § 2255
    motion. Thus, under our precedent, Bueno-Sierra’s Rule 60 motions could not fall
    within the fraud exception to 
    28 U.S.C. § 2244
    (b)’s requirements. See Gonzalez,
    
    366 F.3d at 1284-85
    .
    In any event, Bueno-Sierra’s mere labeling of his claims as alleging fraud on
    the court, while actually arguing that the court—whether the trial court or the
    § 2255 court—erred in its legal determinations, was insufficient to raise an
    independent claim of fraud on the court that would not qualify as an unauthorized
    successive § 2255 motion. See Booker, 
    825 F.2d at 283-85
     (stating that
    conclusory allegations of fraud without clear and convincing probative facts
    supporting the claim do not serve to raise the issue of the existence of fraud).
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    Moreover, the “fraud” Bueno-Sierra alleged in his motions falls far short of the
    fraud needed to make a Rule 60(d)(3) fraud-on-the-court claim. See Rozier v. Ford
    Motor Co., 
    573 F.2d 1332
    , 1338 (5th Cir. 1978) (explaining that fraud on the court
    involves “only the most egregious misconduct, such as bribery of a judge or
    members of a jury, or the fabrication of evidence by a party in which the attorney
    is implicated” (internal quotation marks omitted)).5
    Because Bueno-Sierra was attempting to raise new claims, and to relitigate
    previous claims, that challenge the validity of his convictions and sentence, Bueno-
    Sierra was required to ask this Court to authorize the district court to consider a
    successive § 2255 motion. See 
    28 U.S.C. § 2244
    (b)(3)(A). Without such
    authorization, the district court lacked subject matter jurisdiction to consider either
    of Bueno-Sierra’s Rule 60 motions. See Farris, 
    333 F.3d at 1216
    . Accordingly,
    the district court was without jurisdiction to deny Bueno-Sierra’s Rule 60 motions.
    We therefore vacate the district court’s April 24, 2017 order denying Bueno-
    Sierra’s Rule 60(d)(3) motion and its May 10, 2017 order denying Bueno-Sierra’s
    Rule 60(b)(6) motion and remand the case to the district court with instructions to
    dismiss these two Rule 60 motions for lack of subject matter jurisdiction.
    VACATED and REMANDED.
    5
    In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), this
    Court adopted as binding precedent all decisions of the former Fifth Circuit decided before
    October 1, 1981.
    11