United States v. Jeffrey Greenwood

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11592 APRIL 1, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 93-08102-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY GREENWOOD,
a.k.a. Reginald Grimes,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 1, 2009)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Jeffrey Greenwood, proceeding pro se, appeals the district court’s denial of
his post-conviction motion, which he titled “Pro Se Nunc Pro Tunc Motion For
The District Court To Revise And Or Correct Defendant’s Presentence
Investigation Report.” On appeal, Greenwood argues a United States probation
officer erred by covering up inaccurate information in his PSI and the district court
erred by failing to order his PSI be corrected. He submits the alleged errors have
resulted in his present illegal detention.
Whether a district court has subject matter jurisdiction is a legal question
subject to plenary review. United States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th
Cir. 2002). Although Greenwood’s motion does not identify a source of authority
pursuant to which he seeks relief, we have indicated federal courts have “an
obligation to look behind the label of a motion filed by a pro se inmate and
determine whether the motion is, in effect, cognizable under a different remedial
statutory framework.” United States v. Jordan, 915 F.2d 622, 624–25 (11th Cir.
1990).
District courts do not have authority to modify a prisoner’s sentence, except
to the extent provided by the federal statutory provisions controlling sentencing
and the Federal Rules of Criminal Procedure. See Diaz-Clark, 292 F.3d at1315–18. Section 3582(c)(1)(B) of Title 18 of the United States Code provides a
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district court may not modify a term of imprisonment once it has been imposed
unless such modification is “expressly permitted by statute” or by Federal Rule of
Criminal Procedure 35. Because Greenwood’s motion appears ultimately to
challenge his conviction and sentence, we construe his motion as either (1) a
motion to modify the sentence under § 3582 or Federal Rule of Criminal Procedure
35 or (2) a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C.
§ 2255.
Federal Rule of Criminal Procedure 35 allows a court to correct a prisoner’s
sentence if (1) it is within seven days after sentencing and the sentence resulted
from arithmetical, technical, or other clear error, or (2) the Government files a
substantial assistance motion. Fed. R. Crim. P. 35(a)-(b). Under § 3582(c)(2), a
district court may reduce a defendant’s sentence if his Guidelines range has been
subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C.
§ 994(o). In certain circumstances, § 3582(c)(1)(A) allows a court to modify a
term of imprisonment if the Director of the Bureau of Prisons moves for a sentence
reduction.
Rule 35 and § 3582 do not provide Greenwood with the relief he seeks.
Rule 35 is inapplicable because the Government never filed a motion to reduce
Greenwood’s sentence and Greenwood filed his own motion more than seven days
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after sentencing. See United States v. Morrison, 204 F.3d 1091, 1093 (11th Cir.
2000) (holding, in the context of an earlier verison of Rule 35, the seven-day
limitation is a “jurisdictional restriction”). Likewise, § 3582 does not apply
because Greenwood’s motion did not identify a retroactively applicable
amendment to the Sentencing Guidelines that would have the effect of lowering his
Guidelines range, see § 3582(c)(2), and the Director of the Bureau of Prisons did
not move to reduce Greenwood’s term of imprisonment, see § 3582(c)(1)(A).
Greenwood is also not entitled to any relief under 28 U.S.C. § 2255. See
United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (holding, to the extent
a defendant is attempting to attack his sentence collaterally as a violation of the
United States Constitution, “the proper avenue of relief is § 2255”). Section 2255
provides:
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or
correct the sentence.
A federal prisoner who wishes to file a second or successive motion to vacate, set
aside, or a correct 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),
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2244(b)(3)(A).
The district court did not have jurisdiction to construe Greenwood’s present
motion as a § 2255 motion because Greenwood previously filed a § 2255 motion
and did not obtain authorization from this Court to file a second or successive
§ 2255 motion. See Holt, 417 F.3d at 1175 (holding the district court lacked
jurisdiction to consider a defendant’s motion, construed as a motion filed under
§ 2255, because the defendant had filed a previous § 2255 motion and had not
obtained authorization from this Court to bring a second or successive one).
Furthermore, even if the district court did have jurisdiction, Greenwood is not
entitled to relief under § 2255 because he did not object to the alleged inaccuracies
in his PSI at sentencing. See United States v. Peloso, 824 F.2d 914, 915 (11th Cir.
1987) (“[W]here a defendant was given an opportunity to examine his PSI report,
in order to bring a Rule 32 issue in a post-conviction proceeding, the defendant
must have objected to the presentencing report at trial. To raise it for the first time
post-judgment is too late.”).
We conclude no statute or rule provided the district court with a
jurisdictional basis on which to consider Greenwood’s motion. Accordingly, we
affirm.
AFFIRMED.
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