NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 15, 2013*
Decided April 16, 2013
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐3693
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 08‐40072‐001
KYLE E. PITTENGER, Joe Billy McDade,
Defendant‐Appellant. Judge.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 12‐3693 Page 2
O R D E R
Kyle Pittenger, a federal prisoner, appeals the denial of his postjudgment motion to
reduce sentence. Because this was his second such collateral attack, however, the district
court should not have denied the motion but treated it as successive, first requiring
authorization from this court to proceed.
28 U.S.C. § 2255(h). Pittenger filed a notice of
appeal, which we construe as a request for a certificate of appealability. See FED. R. APP. P.
22(b)(2). We deny Pittenger a certificate of appealability and dismiss the appeal.
In 2009 Pittenger pleaded guilty to mail fraud. See
18 U.S.C. § 1341. In his plea
agreement, he waived his right to appeal or collaterally attack his conviction or sentence on
any basis, including deficient performance of his attorney. The court calculated a total
offense level of 28, which included a 4‐level increase because Pittenger was associated with
a securities broker, see U.S.S.G. § 2B1.1(b)(18)(A)(ii), and a 2‐level increase for abuse of a
position of trust, see U.S.S.G. § 3B1.3, and sentenced him to 87 months’ imprisonment, the
bottom of his calculated guidelines range. Despite his agreement not to collaterally attack
his conviction or sentence, Pittenger filed a motion under
28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence, alleging violations of the Sixth Amendment and ineffective
assistance of counsel. The court enforced Pittenger’s waiver and dismissed the motion.
In 2012 Pittenger filed a motion that is the subject of this appeal; he labeled it
“Motion Challenging the impermissible assessment of a Two‐Level ‘Abuse of Position of
Trust’ enhancement, in violation of Emergency USSG Amendment 647.”1 He challenged the
district court’s calculation of his guidelines range, arguing that since he received a 4‐level
enhancement under U.S.S.G. § 2B1.1(b)(18)(A)(ii) for being a “financial advisor associated
with a broker,” he should not have also received a 2‐level enhancement under U.S.S.G.
§ 3B1.3 for abuse of position of trust. The district court denied the motion. The court agreed
that it had erred in applying the abuse‐of‐trust enhancement, see U.S.S.G. § 2B1.1, cmt.
n.14(c), but pointed out that Pittenger in his plea agreement had waived his right to appeal,
and noted that nothing in the record suggested that Pittenger’s plea was not voluntary or
knowingly made. The court, also noting that Pittenger’s motion relied upon Federal Rule of
Civil Procedure 60(b), found that rule unavailable to a defendant challenging his sentence
in a criminal case.
1
Amendment 647, one of the January 2003 amendments to the guidelines, added a
new subsection (now 18) to U.S.S.G. § 2B1.1, increasing the base offense level by four for
offenses involving a violation of securities law. U.S.S.G. app. C (2003).
No. 12‐3693 Page 3
On appeal Pittenger challenges the denial of his most recent motion because his
guidelines range had been miscalculated. Pittenger believes that the Supreme Court’s
decisions in United States v. Booker,
543 U.S. 220 (2005), Rita v. United States,
551 U.S. 338
(2007), and Gall v. United States,
552 U.S. 38 (2007), require that his sentence be based on an
accurate guidelines calculation. But Pittenger had previously filed a § 2255 motion, so this
motion constituted a second or successive collateral attack. No matter how a motion is
labeled, a court should treat it as arising under
28 U.S.C. § 2255 if the prisoner–like
Pittenger here–challenges the legality of his detention or sentence and requests that his
sentence be vacated, set aside, or corrected. See Gonzalez v. Crosby,
545 U.S. 524, 531 (2005);
Curry v. United States,
507 F.3d 603, 604 (7th Cir. 2007). But before a federal prisoner may
file a second or successive § 2255 motion, he must first obtain on order from us authorizing
the district court to consider the motion. See
28 U.S.C. § 2255(h); Curry,
507 F.3d at 604.
Pittenger neglected to do so, and the district court should have dismissed the motion for
lack of jurisdiction See Curry,
507 F.3d at 605.
Because Pittenger’s motion was a successive collateral attack, his appeal may not
proceed without a certificate of appealability. See
28 U.S.C. § 2253(c)(1)(B); FED. R. APP. P.
22(b)(1); United States v. Carraway,
479 F.3d 845, 849 (7th Cir. 2007). Pittenger did not seek
such a certificate in the district court, and he has not expressly sought one here, but his
notice of appeal constitutes an implicit request. See FED. R. APP. P. 22(b)(2). Before a
certificate of appealability may be granted, however, the petitioner must present a
“substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2); United
States v. Fleming,
676 F.3d 621, 625 (7th Cir. 2012). Pittenger’s challenge to the district court’s
guideline calculation does not meet this demanding standard. See Hawkins v. United States,
706 F.3d 820, 823–24 (7th Cir. 2013).
Accordingly, we DENY Pittenger a certificate of appealability and DISMISS his
appeal.
