United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge.
matter is before the court on Defendant's “motion
for relief from judgment or independent action”
pursuant to Fed. R. Civ. P 60(b) and (d). ECF No. 1426.
Defendant appears to be moving for relief from judgment based
on Rule 60(b)(4) or (5), or for this court to grant relief in
an independent action under Rule 60(d). His motion seeks
reconsideration of this court's denial of his previously
filed motions under 28 U.S.C. § 2255 and 18 U.S.C.
§ 3582(c)(2), arguing he should benefit from United
States v. Williams, 808 F.3d 253 (4th Cir. 2015), which held
modification of sentence available to defendants who receive
amended sentences below their original mandatory minimum. The
Government filed a response in opposition, characterizing
Defendant's motion as a “Holloway request.”
ECF No. 1431. Defendant filed a reply, arguing Amendment 782
should be applied as he received a Rule 35(b) reduction in
sentence and is no longer sentenced to a statutory mandatory
minimum. ECF No. 1435.
Rule of Civil Procedure 60(b) allows for relief from a final
judgment for certain reasons, including a void judgment, one
based on an earlier judgment reversed or vacated, or one no
longer equitable. Fed.R.Civ.P. 60(b)(4), (5). Rule 60(d)
allows a court to “entertain an independent action to
relieve a party from a judgment, order, or proceeding.”
instant motion does not set forth a valid basis for relief
under Rules 60(b) or (d). The Fourth Circuit Court of Appeals
has directed that district courts ascertain and address
whether Rule 60(b) motions are, in reality, second or
successive motions under § 2255. See United States v.
Winestock, 340 F.3d 200, 206 (4th Cir. 2003); see also
Gonzalez v. Crosby, 125 S.Ct. 2641 (2005).
“[A] motion directly attacking the prisoner's
conviction or sentence will usually amount to a successive
application, while a motion seeking a remedy for some defect
in the collateral review process will generally be deemed a
proper motion for reconsideration.” Winestock, 340 F.3d
at 207; see also United States v. McRae, 793 F.3d 392, 397
(4th Cir. 2015).
motion attacks his sentence, arguing it should be modified
based on Williams because he received a sentence below his
original mandatory minimum and is therefore now eligible for
a reduction under § 3582(c). ECF No. 1426 at 3. He
further argues modification is appropriate because he would
not receive an enhancement under § 851 based on the
“new charging policies” as delineated in a
Justice Department memo from August 2013. Id. at
4. Neither of these grounds alleges a defect in the
collateral review process; therefore, this motion is one
properly brought under § 2255. As such, it is successive
and Defendant has failed to first obtain permission from the
Fourth Circuit Court of Appeals to file a successive §
2255 motion. 28 U.S.C. § 2244(b)(3)(A) (“Before a
second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.”).
Defendant's motion fails on the merits. He is not
eligible for a reduction under Amendment 782 (or any of the
other so-called crack cocaine amendments) because he received
a variance at sentencing which cannot be used to calculate
his guideline range in a proceeding pursuant to §
3582(c). His guideline range at sentencing was 262 to 327
months, based on a total offense level of 34 and a criminal
history category of VI. See ECF No. 1254. However, Defendant
received a variance at sentencing and was sentenced to a
below-guidelines 240 months, the mandatory
minimum. An amended judgment was entered on
December 17, 2014, reducing Defendant's sentence to 188
months. Defendant is correct this “gets him out from
under” the mandatory minimum, making him eligible for a
sentence modification under Amendment 782. However, it does
not automatically render the Amendment applicable to
Defendant's specific situation.
case, the court must start the modification analysis at
Defendant's original applicable guideline range of
262-327, not the imposed sentence of 240 months, because
variances granted at sentencing cannot be factored into the
Amendment 782 analysis. Because Defendant is a career
offender, his amended total offense level is still a 34: the
two level reduction under Amendment 782 would take him to a
32, but the career offender guideline would take him back up to a
37 with a three level reduction for acceptance resulting in a
34. The resulting guideline range remains 262-327 months. The
Rule 35(b) reduction is then factored in, resulting in a
21.5% reduction to 206 months. However, as Defendant is
currently serving a sentence of 188 months, he does not
receive a lower sentence by application of Amendment 782.
reasons above, Defendant's motion is denied.
The governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing required
by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard
by demonstrating that reasonable jurists would find this
court's assessment of his constitutional claims is
debatable or wrong and that any dispositive procedural ruling
by the district court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel,
529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). In this case, the legal standard
for the ...