United States District Court, D. Maine
RECOMMENDED DECISION ON MOTION TO MODIFY
C. Nivison U.S. Magistrate Judge.
action, Defendant Trevis Caldwell moves to modify his
sentence. (Motion, ECF No. 71.) Defendant is serving a
223-month sentence on a conviction that followed his guilty
plea to a number of federal offenses, including armed bank
robbery. United States v. Caldwell, 358 F.3d 138,
139 (1st Cir. 2004). He contends the Court incorrectly
sentenced him under 18 U.S.C. § 924(c)(1)(B)(i) after
another charge, which alleged possession of a short-barreled
shotgun, was dismissed on the Government's motion.
(Motion at 2-3.) Defendant contends that the other charge was
dismissed because the weapon did not qualify as
short-barreled. (Id.; Response, ECF No. 74 at 2.)
The Government objects to the motion. (Response at 1.)
a review of Defendant's motion and the Government's
request for dismissal, I recommend the Court grant the
Government's request, and dismiss Defendant's motion.
18 U.S.C. § 3582, which governs sentence modifications,
provides that a criminal judgment is final, with limited
exceptions. Section 3582(b) sets forth three
circumstances under which a court can modify a sentence.
First, under subsection 3582(b)(1), a sentence may be
modified pursuant to subsection (c), which provides that the
Director of the Bureau of Prisons may file a motion to reduce
the prison term under certain specified circumstances
(subsection 3582(c)(1)), and that a sentence may be modified
when the Sentencing Commission has lowered a sentencing range
and other requirements are satisfied (subsection 3582(c)(2)).
Neither situation applies to Defendant's motion.
addition, subsection 3582(b)(2), which applies to sentence
corrections pursuant to Fed. R. Crim. P. 35 (i.e.,
corrections within 14 days after sentencing and reductions
for substantial assistance on the Government's motion)
and to direct appeals from a sentence pursuant to 18 U.S.C.
§ 3742, and subsection 3582(b)(3), which also applies to
direct appeals pursuant to 18 U.S.C. § 3742, also do not
apply to Defendant's motion. Plaintiff's sentence,
therefore, cannot be modified pursuant to 18 U.S.C. §
although Defendant did not cite 28 U.S.C. § 2255 as a
basis for his motion, this Court would lack jurisdiction over
the matter had he filed a section 2255 motion. This Court
dismissed as untimely under section 2255(f) a prior motion
filed by Defendant. Caldwell v. United States, Nos.
2:09-cv-438-DBH, 2:02-cr-00041-DBH (D. Me. Oct. 16, 2009).
The dismissal of Defendant's “first habeas petition
as time-barred was a decision on the merits, and any later
habeas petition challenging the same conviction is second or
successive and is subject to [28 U.S.C. §
2244(b)].” In re Rains, 659 F.3d 1274, 1275
(10th Cir. 2011) (per curiam) (denying authorization to file
a second or successive 28 U.S.C. § 2254 petition);
Villanueva v. United States, 346 F.3d 55, 58 (2d
Cir. 2003) (holding “that a first § 2255 petition
that has properly been dismissed as time-barred under [28
U.S.C. § 2244] has been adjudicated on the merits, such
that authorization from this court is required before filing
a second or successive § 2255 petition”).
Court lacks jurisdiction to consider a second or successive
section 2255 motion unless the First Circuit Court of Appeals
has specifically authorized the Court to consider the motion.
Title 28 U.S.C. § 2244 applies to second or successive
section 2255 motions, pursuant to section 2255(h). Section
2244(b)(3)(A) states: “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.” See also First
Circuit Rule 22.1. The First Circuit has held: “We have
interpreted [section 2255(h) ] as ‘stripping the
district court of jurisdiction over a second or successive
habeas petition unless and until the court of appeals has
decreed that it may go forward.'” Trenkler v.
United States, 536 F.3d 85, 96 (1st Cir. 2008) (quoting
Pratt v. United States, 129 F.3d 54, 57 (1st Cir.
1997)). A review of the record reveals no evidence to suggest
that Defendant has obtained from the First Circuit permission
to file the pending motion. See 28 U.S.C.
§§ 2244, 2255. To the extent the motion could be
construed as a section 2255 motion, therefore, this Court
lacks jurisdiction to consider the motion.
on the foregoing analysis, I recommend the Court deny
Defendant's motion to modify the sentence. To the extent
the motion could be construed as a section 2255 motion, I
further recommend that the Court deny a certificate of
appealability pursuant to Rule 11 of the Rules Governing
Section 2255 Cases because there is no substantial showing of
the denial of a constitutional right within the meaning of 28
U.S.C. § 2253(c)(2).
may file objections to those specified portions of a
magistrate judge's report or proposed findings or
recommended decisions entered pursuant to 28 U.S.C.
636(b)(1)(B) for which de novo review by the
district court is sought, together with a supporting
memorandum, within fourteen (14) days of being served with a
copy thereof. A responsive memorandum shall be filed within
fourteen (14) days after the filing of the objection.
to file a timely objection shall constitute a waiver of the
right to de novo review by the district court and ...