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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10169
Non-Argument Calendar
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D.C. Docket No. 8:07-cr-00368-RAL-TBM-7
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MELVIN VELEZ-SANTOS,
a.k.a. Omar,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 13, 2020)
Before ED CARNES, Chief Judge, WILLIAM PRYOR, and BRANCH, Circuit
Judges.
PER CURIAM:
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Melvin Velez-Santos, a federal prisoner, appeals the district court’s denial of
his November 2018 motion to correct his total sentence and contends that he is
entitled to a correction of his total sentence because the district court miscalculated
his guideline range when it sentenced him in 2008. The government has moved for
summary affirmance and to stay the briefing schedule.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
“In an appeal challenging a § 2255 ruling, we review legal issues de novo and
factual findings for clear error.” Murphy v. United States,
634 F.3d 1303, 1306
(11th Cir. 2011).
“Section 2255 allows a federal prisoner to seek post-conviction relief from a
sentence imposed in violation of the Constitution or laws of the United States or if
it is otherwise subject to collateral attack.”
Murphy, 634 F.3d at 1306. To
collaterally attack the validity of a federal sentence, a defendant must typically
proceed under § 2255. See Darby v. Hawk-Sawyer,
405 F.3d 942, 944 (11th Cir.
2005). A federal prisoner who wishes to file a second or successive motion to
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vacate, set aside, or correct a sentence is required to move the court of appeals for
an order authorizing the district court to consider such a motion.” See 28 U.S.C.
§ 2255(h), cross-referencing 28 U.S.C. § 2244. Without such authorization, “the
district court lacks jurisdiction to consider a second or successive petition.” Farris
v. United States,
333 F.3d 1211, 1216 (11th Cir. 2003).
Here, Velez-Santos’ November 2018 motion to correct his total sentence,
although not labeled as such, is properly construed as a § 2255 motion. However,
Velez-Santos had previously brought a § 2255 motion, which was denied on the
merits and the denial was affirmed by us. See Velez-Santos v. United States, 469 F.
App’x 809 (11th Cir. 2012) (unpublished). Therefore, Velez-Santos’ present
§ 2255 motion is a successive one and because he failed to request permission
from us before filing it in the district court, the district court lacked jurisdiction
over it. 28 U.S.C. § 2255(h);
Farris, 333 F.3d at 1216. Although the district court
denied Velez-Santos’ motion in a paperless order without explanation instead of
dismissing it, this is a distinction without a difference in this case that does not
prevent us from construing it as a dismissal and, with that understanding,
summarily affirming the district court.
There is no substantial question as to the outcome of the case, and the
government’s position — that the district court lacked jurisdiction over Velez-
Santos’ § 2255 motion — is correct as a matter of law. See
Davis, 406 F.2d at
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1162. The government’s motion for summary affirmance is GRANTED, and its
motion to stay the briefing schedule is DENIED as moot.
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