United States v. Terry Eugene Savage , 81 F. App'x 626 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2184
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United States of America, *
*
Respondent, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Terry E. Savage-El, *
* [UNPUBLISHED]
Petitioner. *
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Submitted: October 29, 2003
Filed: December 2, 2003
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Before MELLOY, HANSEN, and SMITH, Circuit Judges.
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PER CURIAM.
Federal prisoner Terry E. Savage-El appeals from the district court’s1 orders
denying his recusal motion and dismissing as unauthorized successive 28 U.S.C.
§ 2255 motions, his motions requesting sentencing review and sentencing reduction.
We affirm.
1
The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
Savage-El was convicted of being a felon in possession of a firearm and was
sentenced to the statutory minimum, fifteen years imprisonment; his conviction and
sentence were affirmed on appeal. See United States v. Savage, 863 F.2d 595, 600
(8th Cir. 1988), cert denied, 490 U.S. 1082 (1989). Savage-El filed a section 2255
motion challenging his sentence, but the district court denied the motion and on
appeal, we declined to issue a certificate of appealability. Savage-El then filed the
instant motions: a motion for review of sentence pursuant to 18 U.S.C. § 3742, a
motion for sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2), and a motion to
recuse the district court judge. The district court denied the recusal motion, and
construing the sentencing-review and sentence-reduction motions as successive
section 2255 motions, dismissed them because Savage-El had not obtained
authorization from this court to file a second or successive section 2255 motion.
On appeal, Savage-El argues that the district court mischaracterized his section
3742 and 3582(c)(2) motions, and that the district court judge's prior adverse rulings
demonstrated bias.
We find that the district court properly treated Savage-El’s section 3742 and
3582 motions as successive section 2255 motions. Section 3742, which governs
direct appeals, does not provide Savage-El a means to revisit his sentence now;
Savage-El’s direct appeal concluded when his conviction and sentence were affirmed.
Section 3582(c)(2), which allows modification of a sentence when the Sentencing
Commission has amended a section of the Guidelines to lower the applicable
sentencing range, does not help Savage-El either, because he received the statutorily
required minimum sentence and there have been no amendments to U.S.S.G.
§ 5G1.1(b) (“Where statutorily required minimum sentence is greater than the
maximum of the applicable guideline range, the statutory minimum sentence shall be
the guideline sentence.”). Thus, neither section 3742 nor 3582 is applicable, and
Savage-El may not circumvent the statutory requirements for filing a successive
section 2255 motion by invoking these statutes to challenge his sentence. Cf. United
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States v. Patton, 309 F.3d 1093, 1094 (8th Cir. 2002) (per curiam) (treating Fed. R.
Crim. P. 12(b)(2) motion as successive habeas motion where inmate challenged
sentence imposed, because it was apparent that inmate was attempting to bypass
statutory requirements for filing successive motion).
Finally, Savage-El’s recitation of the district court judge’s prior adverse rulings
in his case was insufficient to demonstrate bias. See Liteky v. United States, 510 U.S.
540, 555 (1994) (“judicial rulings alone almost never constitute a valid basis for a
bias or partiality motion”).
Accordingly, we affirm the district court’s decision. We also find that Savage-
El has not stated any grounds which would warrant the authorization of a successive
section 2255 motion, and we deny his pending motion to correct the record.
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