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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12207
Non-Argument Calendar
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D.C. Docket Nos. 0:19-cv-60480-JIC,
0:15-cr-60079-JIC-2
KADEEM WILLINGHAM,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 4, 2020)
Before MARTIN, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Kadeem Willingham, a federal prisoner proceeding pro se, appeals the
district court’s dismissal of his pro se 28 U.S.C. § 2255 motion to vacate his
sentence. The government has moved for summary affirmance and a stay of the
briefing schedule. We do summarily affirm the dismissal.
In 2015, a federal grand jury returned a twelve-count indictment charging
Willingham with conspiracy to commit Hobbs Act robbery, Hobbs Act robbery,
attempted Hobbs Act robbery, and brandishing a firearm in furtherance of a crime
of violence. Pursuant to a written plea agreement, Willingham pleaded guilty to
two counts (Counts 3 and 8) of brandishing a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). In exchange for
Willingham’s guilty plea, the government dismissed the remaining counts. The
district court sentenced Willingham to a 7-year mandatory minimum sentence on
Count 3 to run consecutively with a 25-year mandatory minimum sentence on
Count 8. Willingham filed no direct appeal.
In 2016, Willingham filed a counseled section 2255 motion to vacate his
sentence in the light of the Supreme Court’s decision in Johnson v. United States,
135 S. Ct. 2551 (2015). The district court denied Willingham’s motion on the
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merits; both the district court and this Court denied Willingham a certificate of
appealability.
In February 2019, Willingham filed pro se the section 2255 motion at issue
in this appeal. Briefly stated, Willingham seeks relief under section 403 of the
First Step Act of 2018, which amended section 924(c)(1)(C). Willingham
contends that his 25-year mandatory minimum sentence on Count 8 must be
vacated under the amended version of section 924(c).
The district court determined that Willingham’s motion constituted an
unauthorized second or successive section 2255 motion and was, thus, subject to
dismissal for lack of jurisdiction. The district court also determined that -- even if
Willingham’s motion could be construed as a motion for a sentence reduction
under 18 U.S.C. § 3582(c)(1)(B) -- Willingham was unentitled to relief because
section 403 of the First Step Act was not made retroactive. This appeal followed.
Summary disposition is appropriate where “the position of one of the parties
is clearly right as a matter of law so that there can be no substantial question as to
the outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
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I.
We review de novo the dismissal of a section 2255 motion as second or
successive. Boyd v. United States,
754 F.3d 1298, 1301 (11th Cir. 2014). We
construe liberally pro se pleadings. Tannenbaum v. United States,
148 F.3d 1262,
1263 (11th Cir. 1998).
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a prisoner who has filed a section 2255 motion to vacate is limited in
his ability to file a “second or successive” section 2255 motion.
Boyd, 754 F.3d at
1301. “If a court determines that a § 2255 motion is ‘second or successive,’ the
motion must be certified by the court of appeals before the district court may reach
the merits of the motion.”
Id. Without such authorization, “the district court lacks
jurisdiction to consider a second or successive petition.” Farris v. United States,
333 F.3d 1211, 1216 (11th Cir. 2003).
Willingham contends he is subject to no limitation on second or successive
2255 motions because his section 2255 motion relies on a “newly discovered fact”:
the enactment of the First Step Act. This argument is without merit. The
enactment of the First Step Act constitutes no “newly discovered evidence”
pertinent to whether a “reasonable factfinder would have found [Willingham]
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guilty of the offense.” See 28 U.S.C. § 2255(h)(1) (providing that a second or
successive section 2255 motion must be certified as containing, in pertinent part,
“newly discovered evidence . . . sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty of the
offense. . ..”).
Because Willingham’s section 2255 motion is “second or successive,” and
because Willingham has failed to receive authorization from this Court to file a
successive section 2255 motion, the district court concluded properly that the
motion was subject to dismissal for lack of jurisdiction.
II.
About a sentence-reduction motion, a district court may modify a
defendant’s sentence only to the extent permitted by statute. See 18 U.S.C. §
3582(c)(1)(B). “We review de novo a district court’s conclusions about the scope
of its legal authority under section 3582(c)(2).” United States v. Colon,
707 F.3d
1255, 1258 (11th Cir. 2013).
Section 403 of the First Step Act provides expressly that the amendment to
section 924(c) applies only to defendants not yet sentenced when the Act was
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enacted. First Step Act of 2018, Pub. L. No. 115-391, § 403(b) (amendments to
section 924(c) “shall apply to any offense that was committed before the date of
enactment of this Act, if a sentence for the offense has not been imposed as of such
date of enactment.” (emphasis added)).
Willingham was sentenced in September 2015: more than three years before
Congress enacted the First Step Act on 21 December 2018. By its plain language,
section 403 is thus inapplicable to Willingham. The district court concluded
correctly that it lacked authority to reduce Willingham’s sentence pursuant to
section 403.
No substantial question exists as to the outcome of this appeal. Because the
government’s position is correct as a matter of law, summary affirmance is
appropriate. See Groendyke Transp.,
Inc., 406 F.2d at 1162. The government’s
motion for summary affirmance is GRANTED, and the government’s motion to
stay the briefing schedule is DENIED as moot.
AFFIRMED.
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