United States v. Harris ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 14, 2020
_______________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 20-5023
v. (D.C. No. 4:02-CR-00088-CVE-1)
(N.D. Okla.)
EFREM ZEMBLISH HARRIS,
Defendant - Appellant.
_________________________________________
ORDER AND JUDGMENT *
__________________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
___________________________________________
Mr. Efrem Zemblish Harris, a federal prisoner, moved for a sentence
reduction under 18 U.S.C. § 3582(c)(2) and § 404(c) of the First Step Act
of 2018. The federal district court dismissed his motion for lack of
jurisdiction, reasoning that the First Step Act prohibited relief because the
*
We conclude that oral argument would not materially help us in
deciding the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
So we have decided the appeal based on the record and the parties’ briefs.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate under Fed. R. App. P. 32.1(a) and 10th Cir. R.
32.1(A).
court had already considered the merits and rejected two similar motions
by Mr. Harris.
Mr. Harris appeals, arguing that the district court abused its
discretion. We reject Mr. Harris’s arguments because the district court had
considered a similar motion and rejected it on the merits.
1. Our review is de novo.
Motions for sentence reduction under the Fair Sentencing Act are
typically reviewed for abuse of discretion. See United States v. Boulding,
960 F.3d 774, 784 (6th Cir. 2020); United States v. Galbreath, 506 F.
App’x 736, 737 (10th Cir. 2012) (unpublished). But here the district
court’s dismissal for lack of jurisdiction was premised on statutory
interpretation, so our review is de novo. Ausmus v. Perdue, 908 F.3d 1248,
1252 (10th Cir. 2018).
2. Mr. Harris has previously sought relief under § 404 of the First
Step Act.
The First Step Act prohibits courts from reviewing motions for
sentence reduction “if a previous motion made under this section to reduce
the sentence was, after the date of enactment of this Act, denied after a
complete review of the motion on the merits.” First Step Act, Pub. L. 115-
391, 132 Stat. 5194, 5222 (2018).
Mr. Harris previously filed two motions for sentence reduction under
18 U.S.C. § 3582(c)(2). But Mr. Harris argues that he remains eligible
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because he didn’t base those motions on § 404 of the First Step Act.
Appellant’s Opening Br. at 10. We reject this argument.
Mr. Harris “based [his first motion] on Congress making the Fair
Sentencing Act of 2010, to be applied retroactively to those that were
sentenced before then and 18 U.S.C. § 3582(c)(2).” Dkt. #212 at 3; see
United States v. Boulding, 960 F.3d 774, 777 (6th Cir. 2020) (“Section 404
of the First Step Act made Sections 2 and 3 of the Fair Sentencing Act
retroactive for defendants who were sentenced before August 3, 2010.”).
So the district court evaluated Mr. Harris’s first motion under the First
Step Act. Dkt. #214 at 2. The same is true of Mr. Harris’s second motion
for a sentence reduction. Dkt. #215 at 1. So Mr. Harris based both prior
motions on § 404 of the First Step Act.
3. The district court provided complete review of Mr. Harris’s
previous motions and denied them on the merits.
Mr. Harris argues that his prior motions haven’t received complete
review on their merits. Appellant’s Opening Br. at 9. We disagree,
concluding that Mr. Harris’s previous motions were denied on the merits.
The district court denied Mr. Harris’s first motion after determining
that Mr. Harris was ineligible for a sentence reduction because
• his sentence was not based on a sentencing range and
• his sentence was based on a conspiracy to distribute powder
cocaine and cocaine base (rather than just cocaine base).
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For both reasons, the district court concluded that Mr. Harris was not
entitled to a reduction and denied his first motion for reconsideration. Dkt.
#214 at 3. Mr. Harris’s second motion was also denied on the merits. In
denying the second motion, the district court cited the same reasons
previously given when denying the first motion. See Dkt. #217, at 2. So
both of the prior motions failed only after the district court had provided
complete review on the merits.
Mr. Harris also argues that his prior motions should have been
dismissed for lack of jurisdiction. Appellant’s Opening Br. at 10–11. But
this argument is procedurally barred because Mr. Harris could have raised
this jurisdictional challenge in the prior proceedings. See United States v.
Bigford, 365 F.3d 859, 865 (10th Cir. 2004) (“[A]s long as a party had an
opportunity to litigate the jurisdictional issue, it is not subject to collateral
attack on that basis.”). Preclusion applies even if the prior judgment may
have rested on an incorrect legal principle. Federated Dep’t Stores, Inc. v.
Moitie, 452 U.S. 394, 398 (1981).
This Court has also addressed a similar issue in the federal habeas
corpus context. Habeas claims already presented in a prior application are
barred as second or successive. 28 U.S.C. § 2244 (b)(1). In this context, a
motion for relief from a judgment “is a second or successive petition if it
in substance or effect asserts or reasserts a federal basis for relief from the
petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213,
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1215 (10th Cir. 2006). Similarly, Mr. Harris’s third motion simply
reasserts the same grounds for sentence reconsideration that he asserted in
his prior motions.
4. The district court properly dismissed the motion for lack of
jurisdiction.
The parties agree that the First Step Act expressly prohibits courts
from reviewing motions for sentence reduction “if a previous motion made
under this section to reduce the sentence was, after the date of enactment
of this Act, denied after a complete review of the motion on the merits.”
First Step Act, Pub. L. 115-391, 132 Stat. 5194, 5222 (2018). Mr. Harris
filed two prior motions under § 404 of the First Step Act. Each was
“denied after a complete review of the motion on the merits.” Id. So the
district court correctly dismissed Mr. Harris’s motion for lack of
jurisdiction.
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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