United States v. Jeffrey Myers , 597 F. App'x 153 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6698
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY LYNN MYERS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:06-cr-00033-RLV-DCK-1; 5:11-cv-
00065-RLV)
Submitted: October 31, 2014 Decided: January 14, 2015
Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Jeffrey Lynn Myers, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Lynn Myers filed a 28 U.S.C. § 2255 (2012)
motion raising several claims of ineffective assistance of
counsel. The district court denied relief on all but one claim,
namely, that counsel was ineffective for failing to object to
Myers’s sentence as to Count Two because the jury had convicted
him of simple possession, rather than possession with intent to
distribute, as charged in the indictment. Because the statutory
maximum applicable to Count Two was three years, the district
court entered an amended judgment, without holding another
sentencing hearing, imposing a three-year sentence on that
count. Myers now appeals the denial of relief on some of his
unsuccessful habeas claims and the amended judgment. We dismiss
this appeal in part, and we affirm the court’s amended criminal
judgment.
An amended judgment entered as a result of a § 2255
resentencing “is a hybrid order that is both part of the
petitioner’s § 2255 proceeding and part of his criminal case.”
United States v. Hadden, 475 F.3d 652, 664 (4th Cir. 2007). To
the extent the movant seeks to appeal the order by challenging
the district court’s decision not to grant relief on some of the
claims in his § 2255 motion, he is appealing the final order in
a proceeding under § 2255 and must obtain a certificate of
appealability (COA) under § 2253. To the extent he seeks to
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appeal the order by challenging the propriety of the relief
granted, i.e., whether the relief was appropriate under § 2255
or whether the new sentence is in conformity with the Sentencing
Guidelines, he is appealing a new criminal sentence and need not
obtain a COA. Id. at 664-66.
With respect to Myers’s appeal of the district court’s
order denying relief on all but one claim in his § 2255 motion,
the order is not appealable unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (2012). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85. We have independently reviewed the record
and conclude that Myers has not made the requisite showing.
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Accordingly, we deny a certificate of appealability and dismiss
this portion of the appeal.
Myers also seeks to appeal the amended criminal
judgment, claiming the district court should have held a
resentencing hearing to afford him the benefit of the Fair
Sentencing Act of 2010 and the Supreme Court’s decision in
Alleyne v. United States, 133 S. Ct. 2151 (2013). We disagree
with Myers’s arguments.
We have held that the Fair Sentencing Act does not
apply retroactively to sentences imposed before its enactment in
2010. United States v. Bullard, 645 F.3d 237, 248 (4th Cir.
2011). Myers was sentenced in 2008, and because the amended
criminal judgment issued by the district court following his §
2255 motion corrected his original sentence without a full
resentencing, the Fair Sentencing Act is not implicated. See
United States v. Black, 737 F.3d 280, 286 (4th Cir. 2013)
(explaining that application of the FSA to sentences imposed
after its effective date "refer[s] to initial sentencings . . .
not to subsequent proceedings to modify [a] sentence").
Myers’s claim under Alleyne also fails. In that case,
the Supreme Court held that any fact that increases the
mandatory minimum for a crime must be submitted to the jury and
found beyond a reasonable doubt. 131 S. Ct. at 2155. Here, the
indictment charged Myers with conspiracy involving more than
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fifty grams of crack cocaine. The jury, however, found Myers
responsible for only five grams of crack cocaine. This finding
was sufficient, at the time, to require a mandatory minimum
sentence and therefore Myers’s original sentence did not violate
Alleyne. Moreover, the district court’s ultimate sentence of
360 months relied on Myers’s status as a de facto career
offender, and did not result from any mandatory minimum
sentence.
Accordingly, we affirm as to the district court’s
amended judgment. We further deny Myers’s motions for the
appointment of counsel and for a stay of transfer to another
facility. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
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