Nos. 5:14-CV-04003-SAC & 5:95-CR-40083-SAC-8 (D. Kan.)
TYMKOVICH, Chief Judge, LUCERO and HARTZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Wardell Quary, a federal prisoner appearing pro se, seeks a
certificate of appealability (COA) to challenge the district
court's dismissal of his motion for relief under 28
U.S.C. § 2255 for lack of jurisdiction. We deny a COA
and dismiss this matter.
jury convicted Quary of multiple drug offenses, he received a
life sentence. He also received a consecutive term of 60
months' imprisonment for a firearm offense. See
18 U.S.C. § 924(c). His convictions and sentences were
affirmed on direct appeal. See United States v.
Quary, 188 F.3d 520, 1999 WL 546999 (10th Cir. July 28,
1999) (unpublished table decision).
the district court denied his first § 2255 motion, we
denied a COA. See United States v. Quary, 60
Fed.Appx. 188 (10th Cir. 2003). In August 2015, the district
court granted Quary's motion for a sentence reduction
under 18 U.S.C. § 3582(c)(2) and reduced his life
sentence to a 360-month sentence, resulting in a total
sentence of 420 months' imprisonment including the
consecutive term for the firearm offense.
two years later, Quary filed another § 2255 motion. He
argued that the motion was not second or successive because
his sentence reduction constituted a new judgment. The
district court rejected this argument-noting the absence of
Tenth Circuit authority on the issue but also the exclusive
line of precedent from other circuits-and determined that
Quary's motion was a second or successive motion for
which he needed authorization. Quary now seeks a COA to
appeal that ruling, arguing, as he did in the district court,
that his § 2255 motion is not second or successive due
to his intervening sentence reduction.
establish his entitlement to a COA, Quary must make "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). Where, as here, the
district court denies a § 2255 motion on procedural
grounds, a COA may issue only if "the prisoner shows, at
least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and . . . whether the district court was
correct in its procedural ruling." Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
every § 2255 motion filed second in time qualifies as
"second or successive" under the Antiterrorism and
Effective Death Penalty Act; "[t]he Supreme Court has
described the phrase as a term of art." Stanko v.
Davis, 617 F.3d 1262, 1265 n.2 (10th Cir. 2010)
(internal quotation marks omitted). If "there is a new
judgment intervening between the two habeas petitions, an
application challenging the resulting new judgment is not
second or successive." Magwood v. Patterson,
561 U.S. 320, 341-42 (2010) (citation and internal quotation
court has not addressed the precise issue of whether an order
reducing a sentence under § 3582(c)(2) constitutes a
new, intervening judgment for purposes of determining whether
a § 2255 motion is second or successive. However, the
Supreme Court has made clear that § 3582(c)(2)
establishes a narrow exception to the rule that
"[a] federal court generally may not modify a term of
imprisonment once it has been imposed." Dillon v.
United States, 560 U.S. 817, 819 (2010) (internal
quotation marks omitted). "[A] district court proceeding
under § 3582(c)(2) does not impose a new sentence in the
usual sense." Id. at 827. Rather, by its plain
language, the statute "authorize[s] only a limited
adjustment to an otherwise final sentence and not a plenary
resentencing proceeding." Id. at 826.
United States v. Piper, 839 F.3d 1261, 1266 (10th
Cir. 2016), and United States v. Verdin-Garcia, 824
F.3d 1218, 1222 (10th Cir. 2016), we applied Dillon
in deciding that a district court does not abuse its
discretion when it denies a sentence reduction under §
3582(c)(2) without addressing a prisoner's policy-based
arguments. We noted that in a sentencing proceeding, a court
is required to explain its reasons for the sentence it
imposes, see 18 U.S.C. § 3553(c), yet in a
sentence-reduction proceeding, a court is required merely to
consider the relevant factors, see id. §
3553(a), whether or not it grants a reduction.
Piper, 839 F.3d at 1267. Thus, with respect to
motions for a sentence reduction, we found "no basis to
impose upon the district court a requirement to address every
nonfrivolous, material argument raised by the defendant"
in such proceedings. Verdin-Garcia, 824 F.3d at
1222. The established principle of distinguishing sentence
reductions from sentencings in this court supports our
holding today that the former do not qualify as new,
circuits that have addressed this issue have uniformly
reached the same conclusion. See, e.g., Sherrod
v. United States, 858 F.3d 1240, 1242 (9th Cir. 2017);
United States v. Jones, 796 F.3d 483, 487 (5th Cir.
2015); White v. United States, 745 F.3d 834, 837
(7th Cir. 2014).
White, the Seventh Circuit distinguished White's
§ 3582(c) sentence reduction from Magwood's
resentencing. 745 F.3d at 836. White requested and received a
sentence reduction after the Sentencing Commission adopted a
retroactive amendment cutting the offense levels for
crack-cocaine offenses (as did Quary), while Magwood was
sentenced anew after demonstrating in his initial collateral
attack that his original sentence violated the Constitution.
Id. at 835-36. The White court observed
that at a resentencing, a district judge may receive evidence
and reopen issues decided in the original sentencing before
holding a hearing and pronouncing a new sentence.
Id. at 836. By contrast, a court granting a sentence
reduction "takes as established the findings and
calculations that led to the sentence and changes only the
revised Guideline, leaving everything else the same."
Id. In other words, "[t]he penalty goes down,
but the original judgment is not declared invalid."
Id. Therefore, the Seventh Circuit concluded,
"Magwood does not reset the clock or the count,
for purposes of § 2244 and § 2255, when a
prisoner's sentence is reduced as the result of a
retroactive change to the Sentencing Guidelines."
Id. at 837.
Jones, the Fifth Circuit noted that Magwood
does not define the term "new judgment" but held
that Jones "received a reduced sentence [under §
3582(c)(2)], not a new one." 796 F.3d at 485. The court
determined that the sentence-reduction procedure "does
not in any way resemble a full resentencing" because it
"leaves undisturbed the findings and calculations that
formed the ...