Opinion
Case No. 90-CR-42.
April 12, 2011
ORDER
On October 6, 2010, defendant Anthony D. White ("White") filed a Motion for Writ of Error Auditha Querela (Docket #524). White's motion ultimately asks that the court vacate his prior resentencing on the basis that he was improperly given a two-level sentencing guideline enhancement. In an effort to have his claim heard, White attempts two different characterizations of his motion: as one requesting a writ of error auditha querela; or one for a reduction of sentence pursuant to 18 U.S.C. § 3582. The reason for offering both explanations appears to be in order to avoid characterization of his motion as a successive § 2255 motion. The following discussion explains why both characterizations fail and the court is ultimately constrained to dismiss the motion as successive.
BACKGROUND
A discussion of the factual and procedural background of this case is useful before diving into the analysis. This case stems from an original conviction entered in 1990 for participating in a cocaine distribution network. White was convicted of conspiring to possess with intent to distribute (Count 1), using a communication facility to facilitate a felony (Count 16), and using a firearm during and in relation to a drug trafficking offense (Count 35). The court sentenced White to 355 months imprisonment. The Seventh Circuit affirmed his conviction, but remanded for resentencing, after which the court sentenced White to 295 months as to Count 1, 48 months as to Count 16 to run concurrently, and 60 months consecutive as to Count 35, resulting in an identical total sentence of 355 months. The Seventh Circuit affirmed the sentence.
However, in 1997 White filed a motion pursuant to 28 U.S.C. § 2255 challenging his conviction for the use of a firearm. The challenge came after the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995), and this court agreed that the decision invalidated the firearm conviction. The court granted White's motion in part, vacating the firearm conviction, and denied two other claims for relief. As such, the court resentenced White and entered a Second Amended Judgment on March 20, 1998. The court, while vacating the firearm charge, Count 35, sentenced White to a term of 355 months as to Count 1 and 48 months concurrent as to Count 16, again resulting in a total sentence of 355 months. The Seventh Circuit affirmed on April 27, 1999. It is with this sentence that White has a bone to pick. As the court explained at resentencing, the facts previously applicable to Count 1 resulted in a guideline sentencing range of 262 to 327 months. (Tr. of Resentencing Hr'g 11:8-11:10) (Docket #430). The court originally imposed a mid-range sentence of 295 months on Count 1. ( Id. at 11:11-11:12). At resentencing, the court applied the same factual analysis, but additionally included an enhancement under USSG § 2D1.1(b)(1) for possession of a firearm. ( Id. at 11:12-11:15). The court noted that, with the enhanced guideline range, if it were to add the same number of months to the low end of the range as it had previously, it would end up with a 357-month sentence — two more months than the original sentence. ( Id. at 11:8-11:18). The court noted the fact that, while the firearm conviction was no longer before the court, the conduct giving rise to the charge, as affirmed by the Seventh Circuit, remained before the court under the § 2D1.1(b)(1) enhancement and, therefore, there was little to change its view as to the analysis and imposition of sentence. ( Id. at 11:19-12:6). During that hearing, White in fact disputed the application of the two-level enhancement for essentially the same reason as he does now: that there was no evidence at trial to connect White to the firearm that served as the basis for the enhancement. ( Id. at 5:20-6:6).
On June 5, 2001, White filed a motion for reconsideration of his previous § 2255 motion. The court dismissed the motion for lack of jurisdiction on June 11, 2001, concluding that it was in fact a successive motion and White had not obtained leave from the Seventh Circuit to file. The Seventh Circuit denied White a certificate of appealability on April 3, 2002. Since 2002, the docket has been dormant until White's current filing.
ANALYSIS
Because the court finds that the instant motion is in fact a successive § 2255 motion, it must dismiss it for lack of jurisdiction as the Seventh Circuit has not granted leave to file. White first argues that the motion is properly one for a writ of error auditha querela, but the relief requested is covered by 28 U.S.C. § 2255 and, therefore, the writ, even if generally available, is not the proper method for seeking relief here. White also argues that his motion is actually one for reduction of sentence under 18 U.S.C. § 3582, but the basis for his requested relief is foreclosed because the Supreme Court decision he appeals to is not retroactive. Thus, the motion is in actuality one under § 2255 and, because it is a successive motion without certification from the Seventh Circuit, the court must dismiss it for lack of jurisdiction.
I. WRIT OF ERROR AUDITHA QUERELA
II. MOTION FOR REDUCTION OF SENTENCE
auditha querela Auditha querela United States v. Johnson962 F.2d 57958260auditha querela962 F.2d at 583 28 U.S.C. § 2255 Id. United States v. Booker543 U.S. 220Booker Booker Booker auditha querela auditha querela. 18 U.S.C. § 3582inter alia 18 U.S.C. § 3582 Booker 543 U.S. at 249-59 Booker Booker E.g., United States v. Standiford 129 Fed. App'x 304306United States v. Paladino 401 F.3d 471481Standiford Booker's
The Seventh Circuit has in fact expressed skepticism as to whether the writ is available at all given that § 2255 is available to defendants in custody and writ of coram nobis is available to those no longer in custody. United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir. 1982).
III. SUCCESSIVE MOTION UNDER SECTION 2255
As a result, because White's motion is neither properly one for a writ of error auditha querela, nor one for a reduction of sentence pursuant to § 3582, the court construes it as a motion under 28 U.S.C. § 2255. Because this motion is successive, and White has not been granted leave to file by the Seventh Circuit, the court is without jurisdiction and must dismiss it. A prisoner in federal custody may move the sentencing court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). A "second or successive" motion must be certified by the court of appeals before it may be filed with the district court. 28 U.S.C. § 2255(h). As White has plainly filed a first § 2255 motion, and even filed a second, the instant motion, after properly construing it as one under § 2255, is clearly successive. White has not shown that the Seventh Circuit has certified the motion and, therefore, this court has no power to decide it. Thus, the court must dismiss the motion.
Accordingly, IT IS ORDERED that the defendant's Motion for Writ of Error Auditha Querela (Docket #524) be and the same is hereby DISMISSED for lack of jurisdiction.