Benjamin B. Kramer v. United States , 797 F.3d 493 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3049
BENJAMIN BARRY KRAMER,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 14-cv-678 — J. Phil Gilbert, Judge
____________________
ARGUED APRIL 22, 2015 — DECIDED AUGUST 17, 2015
____________________
Before POSNER and KANNE, Circuit Judges, and DARRAH,
District Judge.
KANNE, Circuit Judge.
The Honorable John W. Darrah, of the United States District Court for
the Northern District of Illinois, sitting by designation.
2 No. 14-3049
I. BACKGROUND
In 1988, Appellant Benjamin Barry Kramer was convicted
of two offenses: (1) conspiring to distribute marijuana, in vi-
olation of 21 U.S.C. § 846; and (2) engaging in a Continuing
Criminal Enterprise (“CCE”), in violation of 21 U.S.C.
§ 848(b). As the result of a motion filed under 28 U.S.C.
§ 2255, Kramer’s section 846 conviction and sentence were
vacated in 1998. His section 848 conviction and sentence
were affirmed. In June of 2014, Kramer filed another motion
under section 2255 in the Southern District of Illinois, this
time challenging his CCE conviction.
The district court dismissed Kramer’s petition, conclud-
ing that it lacked subject matter jurisdiction over Kramer’s
claim. It characterized Kramer’s motion as successive and
thus barred by section 2255’s prohibition of subsequent peti-
tions. The district court issued a certificate of appealability
on the question of whether Kramer’s motion is properly
characterized as successive. We affirm the district court’s
dismissal of Kramer’s petition.
A. Kramer’s Trial and Conviction
The government believed that between 1982 and 1986,
Kramer and several associates imported large quantities of
marijuana into the United States. On January 26, 1988, it in-
dicted Kramer and several codefendants on multiple counts.
Count 1 charged him with conducting a CCE, in violation of
21 U.S.C. § 848. Subsection (b) of that statute imposed a pen-
alty of life imprisonment, if certain conditions were met. 21
U.S.C. § 848(b). Kramer was charged under subsection (b).
Count 2 charged him with conspiring to distribute marijuana
in violation of 21 U.S.C. § 846.
No. 14-3049 3
The version of section 848 in effect at the time of Kra-
mer’s offense defined a continuing criminal enterprise as fol-
lows:
[A] person is engaged in a continuing criminal en-
terprise if—
(1) he violates any provision of this subchapter or
subchapter II of this chapter the punishment for
which is a felony, and
(2) Such violation is a part of a continuing series of
violations of this subchapter or subchapter II of this
chapter—
(A) which are undertaken by such person in
concert with five or more other persons with re-
spect to whom such person occupies a position
of organizer, a supervisory position, or any oth-
er position of management, and
(B) from which such person obtains substantial
income or resources.
21 U.S.C. § 848(c) (1988) (amended 2006).
So, in addition to the other statutory requirements, to
convict Kramer of the CCE charge, the government had to
prove that Kramer committed the requisite underlying felo-
nies. See 21 U.S.C. § 848(c). The government was not re-
quired to seek or obtain convictions for those underlying of-
fenses—indeed, Kramer could not have been charged with
them, since the applicable statutes of limitation had already
run. See United States v. Kramer, 955 F.2d 479, 487 (7th Cir.
1992) (citing United States v. Young, 745 F.2d 733, 747 (2d Cir.
1984) (holding “in order to support a § 848 charge, the gov-
ernment is not required to … obtain convictions on, any of
the eligible predicate offenses, …”)). The government
4 No. 14-3049
claimed that Kramer had committed a variety of eligible fel-
onies: the indictment listed fourteen drug offenses allegedly
committed by Kramer.1
The case went to jury trial in the Southern District of Illi-
nois between June and October of 1988. The government
presented evidence, including witness testimony, of the drug
violations alleged in the indictment. Over Kramer’s objec-
tion, one witness provided evidence of additional drug of-
fenses that were not enumerated in the indictment.
Following the presentation of evidence, the district court
instructed the jury to engage in a two-step process to deter-
mine whether the government had proven its CCE charge.
First, the court stated, the jury had to determine whether
Kramer had committed any eligible offense. If the jury con-
cluded that Kramer had committed one such violation, it
should proceed to the second step.
In the second step, the jury had to determine whether the
offense that it found in step one was “part of a continuing
series of violations,” as required by subsection (c)(2). See 21
U.S.C. § 848(c)(2). The court instructed the jury that a “con-
tinuing series” meant “three or more violations.” So, in addi-
tion to the violation it had found in step one, the jury had to
conclude that Kramer had committed two additional eligible
felonies. The court did not limit the jury to considering the
section 846 charge and the fourteen violations listed in the
indictment. The court told the jury that it could consider
1The indictment lists eighteen offenses, but four of those appear to apply
only to one of Kramer’s codefendants.
No. 14-3049 5
“any additional violations” of which the government pro-
duced evidence at trial.
Kramer raised a number of objections to the district
court’s jury instructions. As relevant here, Kramer requested
that the court instruct the jury that it could consider only of-
fenses alleged in the indictment. Additionally, he asked that
the court instruct the jurors that they must unanimously
agree on the same three acts as forming the predicates for
the CCE charge. And finally, Kramer requested that the court
use a special verdict form to record the verdict. The court
denied all of these requests.
After five reported deadlocks, the jury convicted Kramer
on both counts. He was sentenced to a forty-year prison term
for the section 846 conviction, and he was sentenced to life
without parole for the section 848(b) conviction.
B. Kramer’s Appeals, Habeas Petitions, and Relevant Case Law
Kramer’s subsequent procedural history is intertwined
with a series of cases decided by this court and the United
States Supreme Court. We present both together, in an at-
tempt to provide a clear and concise explanation of this
case’s twenty-seven year history.
1. Kramer’s Direct Appeal
Kramer filed his direct appeal in May 1989. As relevant
here, that appeal alleged two errors requiring reversal. Kra-
mer argued that the district court erred in (1) refusing to re-
quire juror unanimity as to the three predicate violations re-
quired for the “continuing series” element of the CCE count;
and (2) allowing the jury to consider the section 846 charge
as one of the predicate offenses of the CCE, because it actual-
6 No. 14-3049
ly constituted a lesser-included offense (and was therefore
barred by the Double Jeopardy Clause).
Before we ruled on Kramer’s appeal, we decided United
States v. Baker, 905 F.2d 1100 (7th Cir. 1990). In that case, we
concluded that a section 846 offense could not be counted as
one of the section 848 “continuing series of acts,” because a
section 846 conspiracy was subsumed within the “concert
aspect” of section 848(c). Id. at 104. In light of that determina-
tion, we allowed the parties to submit supplemental briefing
on the issue.
In January 1992, we affirmed Kramer’s convictions. Unit-
ed States v. Kramer, 955 F.2d 479, 492 (7th Cir. 1992). First, we
concluded that the court was not required to instruct the jury
that it must unanimously agree on the same three section
848 predicate offenses. We acknowledged, however, that a
circuit split existed on that issue. Second, we acknowledged
that our decision in Baker made clear that a section 846
charge could not be counted as one of the section 848 “con-
tinuing series” offenses. But we held that any error in allow-
ing the jury to consider the section 846 count was harmless,
because Kramer had been charged with many additional
drug offenses. We concluded that “[t]hese offenses were
more than adequate to meet the continuing series require-
ment of the CCE charge.” Id. at 486.
2. The Supreme Court’s Decision in Rutledge
The Supreme Court decided Rutledge v. United States in
1996, four years after we affirmed Kramer’s conviction on
direct appeal. 517 U.S. 292 (1996). Defendant Tommy
Rutledge was convicted in the Central District of Illinois of
one count of violating section 846 and of one count of violat-
No. 14-3049 7
ing section 848. Id. at 294. He was sentenced to life without
parole on each count. Id. at 295. Rutledge challenged those
convictions and sentences, arguing that they punished him
twice for the same offense, in violation of the Double Jeop-
ardy Clause. Id. at 296. We affirmed his convictions, finding
no double-jeopardy violation. Id. The Supreme Court re-
versed. Id. at 307.
Applying the Blockburger test, the Court determined that
the conspiracy defined in section 846 contained the same el-
ements as the CCE offense defined in section 848. Id. at 300.
As such, the two statutes constituted the same offense for
purposes of double jeopardy: the section 846 conspiracy was
a lesser-included offense of the section 848 CCE. Id. The
Court then concluded that Congress had not clearly author-
ized punishment for both offenses. Id. at 302–07. Therefore,
the Double Jeopardy Clause prohibited multiple punishment
for sections 846 and 848. Id. at 307.
3. Kramer’s 1997 § 2255 Motion
Having exhausted his direct-appeal remedies, on April
22, 1997, Kramer filed a section 2255 motion in the Southern
District of Illinois, seeking a writ of habeas corpus. Of the
several arguments Kramer advanced for vacating his convic-
tions, the three relevant ones for this inquiry are: (1) in light
of Rutledge, his separate convictions and punishments for
violations of sections 846 and 848 violated the Double Jeop-
ardy Clause; (2) the court’s jury instructions on his section
848 count violated due process and the Double Jeopardy
Clause; and (3) his appellate counsel was ineffective for hav-
ing failed to effectively raise that issue on direct appeal.
8 No. 14-3049
On March 5, 1998, the district court issued its memoran-
dum opinion and order. See Kramer v. United States, No. 97-
Civ-4117-JLF (Mar. 5, 1998, S.D. Ill.). It agreed that, in light of
Rutledge, one of Kramer’s convictions must be vacated. The
court vacated his conviction and sentence on the section 846
count, subject to reinstatement in the event that Kramer’s
section 848 conviction were later overturned.
The court rejected Kramer’s second argument, that the ju-
ry instructions on his section 848 count violated due process
and the Double Jeopardy Clause. To begin, the court con-
cluded that it “was not entirely clear whether [Kramer]
raised this precise issue on direct appeal.” Id. at *3–4. If
Kramer had not already raised the issue, he would have
been required to show (1) good cause for failing to raise it,
plus actual prejudice arising from that failure; or (2) that the
court’s refusal to address the claims would result in a fun-
damental miscarriage of justice. If Kramer had raised the
claim on direct appeal, he would have been required to
show changed circumstances in order to raise the issue
again. The court concluded that Kramer did not meet either
set of requirements for raising the issue in his motion. The
court also rejected Kramer’s argument that his counsel was
ineffective for having failed to raise the issue at trial.
The following day, the district court issued its judgment.
It vacated Kramer’s section 846 conviction and sentence, and
it denied his motion in all other respects. The district court
denied Kramer’s motion for a certificate of appealability on
the other claims, and we did the same.
No. 14-3049 9
4. The Supreme Court’s Opinion in Richardson
In 1999, the Supreme Court decided Richardson v. United
States, yet another case on appeal from this court regarding a
section 848 CCE conviction. 526 U.S. 813 (1999). The relevant
facts in that case were virtually identical to those in Kra-
mer’s: at trial, “the judge rejected Richardson’s proposal to
instruct the jury that it must unanimously agree on which
three acts constituted the series of violations. Instead, the
judge instructed the jurors that they must unanimously
agree that the defendant committed at least three federal
narcotics offenses.” Id. at 816 (internal quotations omitted).
Richardson challenged that jury instruction. On appeal we
held, on one side of a circuit split, that the judge’s instruction
was proper.
The Supreme Court reversed. It held that “a jury in a fed-
eral criminal case brought under § 848 must unanimously
agree not only that the defendant committed some ‘continu-
ing series of violations’ but also that the defendant commit-
ted each of the individual ‘violations’ necessary to make up
that ‘continuing series.’” Id. at 815. In other words, each un-
derlying violation in the continuing series constitutes an el-
ement of the CCE offense.
5. Kramer’s 1999 Section 2241 and Section 2255 Motions
In light of the Supreme Court’s decision in Richardson,
Kramer filed a petition in September of 1999 for a writ of ha-
beas corpus in the Southern District of Illinois, seeking relief
under 28 U.S.C. § 2241, or alternatively, 28 U.S.C. § 2255.
The district court ruled on Kramer’s petition in July 2002.
See Kramer v. United States, No. 99-Civ-0684-JLF (Jul. 25, 2002,
S.D. Ill.). The court concluded that it lacked jurisdiction over
10 No. 14-3049
Kramer’s section 2241 motion. At the time that Kramer filed
his petition, he was incarcerated in a federal detention facili-
ty in Terre Haute, Indiana. As such, the court held that Kra-
mer should have filed his motion in the Southern District of
Indiana.
The court found that it lacked jurisdiction under section
2255, as well. A petitioner is required to seek authorization
from the court of appeals to file a “second or successive” sec-
tion 2255 motion. See 28 U.S.C. § 2255, ¶ 8. Without that au-
thorization, the district court lacks jurisdiction over the peti-
tion. The district court concluded that Kramer had already
pursued one section 2255 motion (the 1997 petition that re-
sulted in the vacatur of his section 846 conviction). There-
fore, Kramer was required to obtain permission from this
court before pursuing another section 2255 motion. Without
that permission, the court concluded, it lacked subject matter
jurisdiction over the section 2255 claim. The court dismissed
both motions without prejudice.
On December 20, 2002, Kramer refiled his petition, again
under both sections 2241 and 2255, in the Southern District
of Indiana. See Kramer v. Olson, No. 2:02-cv-00317 (Apr. 21,
2003, S.D. Ind.). That court concluded, as had the district
court in the Southern District of Illinois, that Kramer’s peti-
tion was successive under the language of the statute: Kra-
mer had filed a previous section 2255 motion, and the dis-
trict court had (in addition to the vacatur) denied him relief
on his remaining claims. The district court then concluded
that, under the two routes available to him, Kramer did not
establish that the statute permitted him to file a successive
No. 14-3049 11
section 2255 motion.2 Therefore, the district court concluded
that it did not have jurisdiction over Kramer’s motion.
Kramer appealed the district court’s dismissal, and we af-
firmed. See Kramer v. Olson, 347 F.3d 214 (7th Cir. 2003) (per
curiam).
6. Magwood and Suggs
In 2010, the Supreme Court decided Magwood v. Patterson,
the case that forms the basis of Kramer’s current section 2255
motion. 561 U.S. 320 (2010).
Billy Joe Magwood was convicted in Alabama state court
of killing the Sheriff of Coffee County, and he was sentenced
to death. Having exhausted his state remedies, he filed a pe-
tition for a writ of habeas corpus under section 2254 in the
Middle District of Alabama. The district court upheld Mag-
wood’s conviction but vacated his death sentence. The Court
of Appeals for the Eleventh Circuit affirmed.
The state trial court then held a resentencing hearing, and
it again imposed the death penalty. After again exhausting
his state court remedies, Magwood filed a section 2254 peti-
tion for a writ of habeas corpus, challenging his new death
sentence. He argued that his death sentence was unconstitu-
tional, because “he did not have fair warning at the time of
2 See 28 U.S.C. § 2255, ¶ 5 (permitting a petitioner to bring a successive
motion when the petitioner meets one of two listed criteria); see also In re
Davenport, 147 F.3d 605, 611 (7th Cir. 1998) (establishing circumstances
under which the petitioner could invoke section 2255’s “savings clause,”
permitting a motion under section 2241); Garza v. Lappin, 253 F.3d 918,
922 (7th Cir. 2001) (same); Taylor v. Gilkey, 314 F.3d 832 (7th Cir. 2002)
(same).
12 No. 14-3049
his offense that his conduct would be sufficient to warrant a
death sentence under Alabama law.” Id. at 328.
Under 28 U.S.C. § 2244(b)(3)(A), a petitioner is required
to seek authorization from the court of appeals to file a “sec-
ond or successive” section 2254 motion.3 Without such au-
thorization, the district court lacks jurisdiction over the peti-
tion. The district court, sua sponte, considered whether Mag-
wood’s motion was “second or successive” under sec-
tion 2244(b)(3)(A). The court concluded that the petition was
not successive, and it conditionally granted the motion. The
court of appeals disagreed, concluding that Magwood’s peti-
tion was successive, and therefore that the district court did
not have jurisdiction to entertain the claim. The Supreme
Court reversed.
On appeal, the government argued that the question of
whether a petition was “second or successive” was “claim-
focused”. Id. at 331 (internal quotations omitted) (emphasis
added). According to the government, “the phrase should be
read to reflect a principle that a prisoner is entitled to one,
but only one, full and fair opportunity to wage a collateral
attack.” Id. The government argued that Magwood’s fair-
warning challenge had been available to him from the start:
both when he was sentenced to death the first time and dur-
ing his subsequent collateral review. Magwood failed to
raise it then, and the government argued that this failure
rendered his petition successive.
3 The same requirements apply to motions under both section 2254 and
section 2255.
No. 14-3049 13
The Court rejected the government’s reading of sec-
tion 2244(b)(3)(A). Noting that “second or successive” is a
term of art in the habeas context, the Court turned to the
phrase’s statutory context to interpret it. It concluded that
“second or successive” refers to the state court judgment be-
ing challenged. And in Magwood’s case, he was challenging
a judgment that had not been the subject of his first 2254 mo-
tion. His first death sentence, the subject of his prior sec-
tion 2254 motion, had been vacated. The judgment that he
now challenged was the death sentence that had been sub-
sequently imposed, after a new sentencing hearing. There-
fore, the Court concluded, Magwood’s petition was not suc-
cessive.
Just prior to concluding its opinion, the Court stated the
following:
The State objects that our reading of § 2244(b)
would allow a petitioner who obtains a conditional
writ as to his sentence to file a subsequent applica-
tion challenging not only his resulting, new sen-
tence, but also his original, undisturbed conviction.
The State believes this result follows because a sen-
tence and conviction form a single “judgment” for
purposes of habeas review. This case gives us no
occasion to address that question, because Mag-
wood has not attempted to challenge his underly-
ing conviction. We base our conclusion on the text,
and that text is not altered by consequences the
State speculates will follow in another case.
Id. at 342 (emphasis in original). This language would be crit-
ical to our application of Magwood in Suggs v. United States,
705 F.3d 279 (7th Cir. 2013).
14 No. 14-3049
In Suggs, defendant Alonzo Suggs was convicted of a
federal drug offense and sentenced to 300 months in prison.
Under section 2255, Suggs challenged his sentence, arguing
that he received ineffective assistance of counsel regarding
his sentencing guideline calculations. He succeeded: his sen-
tence was vacated, and he was subsequently resentenced to
240 months in prison.
After his resentencing, Suggs obtained new information
that he claimed established his innocence. He requested
permission from this court to bring a second section 2255
motion, so that he could challenge his conviction in light of
the newly-discovered evidence. We denied his request. He
then filed a new motion under section 2255 in the district
court. He argued that his motion “should not be barred as
‘second or successive’ because his resentencing imposed a
new judgment such that his new motion under section 2255
should not be barred.” Id. at 281.
So, the Suggs facts seemed to present precisely the ques-
tion that the Supreme Court noted, without deciding, in
Magwood: Suggs sought to challenge his underlying convic-
tion, which had been undisturbed by the vacatur of his prior
sentence and his resentencing. Did this constitute a “new
judgment” under Magwood? If so, his section 2255 motion
would be not be considered successive.
Prior to Magwood, our circuit precedent had established
that “such motions after resentencing are not second or suc-
cessive when they allege errors made during the resentenc-
ing, but they are second or successive when they challenge
the underlying conviction. Id. at 282 (citing Dahler v. United
States, 259 F.3d 763 (7th Cir. 2001)). Suggs argued, however,
that the reasoning upon which Dahler was based could not
No. 14-3049 15
have survived Magwood. He contended that he should be
permitted to challenge his underlying conviction as a first sec-
tion 2255 motion.
We disagreed. We concluded that “because Magwood ex-
pressly declined to extend its holding to the facts before us
here, it did not disturb our circuit’s precedent, Dahler, which
applies to Suggs’ motion and required the district court to
dismiss it as second or successive.” Suggs, 705 F.3d at 282–83.
We held that “Magwood’s application to these facts is not suf-
ficiently clear for us to abandon principles of stare decisis
based on what the Supreme Court itself called ‘speculation’
about how the Court would rule on an issue it expressly
chose not to decide.” Id. at 284. Judge Sykes dissented from
this holding, stating that, in her view, “the Supreme Court’s
decision in Magwood v. Patterson … has displaced our deci-
sion in Dahler v. United States.” Id. at 285 (Sykes, J., dissent-
ing).
7. Kramer’s Current Petition
On June 12, 2014, Kramer filed a section 2255 motion in
the Southern District of Illinois, seeking to vacate his sec-
tion 848 conviction. The district court concluded, applying
Suggs, that Kramer’s motion was “second or successive.” See
Kramer v. United States, No. 14-cv-678 (Aug. 8, 2014, S.D. Ill.).
It dismissed Kramer’s petition for lack of jurisdiction, but it
granted a certificate of appealability on the issue of whether
“Kramer’s pending motion was an unauthorized successive
petition under Magwood.” Kramer appealed.
II. ANALYSIS
Underlying Kramer’s current section 2255 motions is the
Supreme Court’s holding in Richardson. It is beyond dispute
16 No. 14-3049
that, in Richardson, the Supreme Court invalidated the very
jury instruction that was employed in Kramer’s case. If Kra-
mer were tried today, the jury would be required to unani-
mously agree on the three predicate felonies used to make
up the “continuing series” of CCE violations. There is no
question that this requirement was not imposed on the jury
that convicted Kramer in 1988. Kramer argues that it is fun-
damentally unfair to detain him, in light of Richardson’s hold-
ing that his jury instructions were infirm.
But Kramer faces a procedural hurdle imposed by section
2255 itself. There is no doubt that, on the merits, Richardson
speaks to the very issue Kramer has raised throughout his
confinement, on both direct and collateral review. But, based
on the procedural requirements imposed by the statute, we
cannot address the merits of Kramer’s claim until we have
established that we have jurisdiction.
Kramer is barred from bringing a successive section 2255
motion, unless his petition falls into one of the narrow ex-
ceptions permitted (noted above) for a subsequent motion.4
Kramer argues, however, that his petition should be consid-
ered a first, non-successive motion. Acknowledging that our
prior holding in Suggs would foreclose his claim if it applied,
Kramer argues that Suggs should not be expanded to cover
4 See 28 U.S.C. § 2255, ¶ 5 (permitting a petitioner to bring a successive
motion when the petitioner meets one of two listed criteria); see also In re
Davenport, 147 F.3d 605, 611 (7th Cir. 1998) (establishing circumstances
under which the petitioner could invoke section 2255’s “savings clause,”
permitting a motion under section 2241); Garza v. Lappin, 253 F.3d 918,
922 (7th Cir. 2001) (same); Taylor v. Gilkey, 314 F.3d 832 (7th Cir. 2002)
(same).
No. 14-3049 17
the circumstances of his claim. Kramer argues that Mag-
wood’s reasoning dictates the conclusion that his claim is not
successive. We disagree.
Kramer argues that Suggs is inapplicable to his case, be-
cause Suggs involved only the vacatur of a sentence and not
an underlying conviction. Kramer’s successful section 2255
motion resulted in the vacatur of a conviction. That differ-
ence, Kramer argues, renders Suggs distinguishable and his
judgment “new” under Magwood.
Kramer is correct in stating that Suggs did not involve the
prior vacatur of a conviction. But Kramer does not explain
why that distinction is meaningful for the purposes of a Mag-
wood analysis. Both Suggs and Kramer employed later sec-
tion 2255 motions to challenge convictions that were undis-
turbed by their prior motions and judgments. In Kramer’s
case, the court expressly denied Kramer’s requested relief on
the section 848 conviction that is the subject of Kramer’s cur-
rent petition.
Indeed, Suggs had an arguably stronger claim than Kra-
mer that, under Magwood, his motion should be considered
non-successive. The conviction that Suggs sought to chal-
lenge was the very one that resulted in both the vacated and
new sentences. In Kramer’s case, he is seeking to challenge
an entirely separate conviction. Only Kramer’s section 846
conviction and sentence were implicated by his successful
section 2255 motion. Both his sentence and his conviction for
the section 848 were entirely undisturbed.
Moreover, underlying our decision in Suggs was the
weight of stare decisis. The Supreme Court expressly declined
to weigh in on the result in a case where a petitioner who
18 No. 14-3049
had raised a successful sentencing challenge under section
2255 and then later raised another 2255 claim challenging the
underlying conviction. In light of that uncertainty, we con-
cluded we were bound to continue to follow our own estab-
lished precedent. This is no less true under Kramer’s facts
than under those presented in Suggs.
Finally, we acknowledge, as the district court did in
granting Kramer’s certificate of appealability, that “jurists of
reason, like Judge Sykes in her Suggs dissent, would find de-
batable the issue of whether Kramer’s pending motion was
an unauthorized successive petition after Magwood.” Kramer,
No. 14-cv-678 at *3. Judge Sykes’s well-reasoned dissent
thoroughly presented why Magwood could be read to have
displaced our prior precedent in Dahler. Suggs, 705 F.3d at
285 (Sykes, J., dissenting). Indeed, as Judge Sykes pointed
out, our opinion in that case reflected a circuit split on the
Suggs issue that continues to the present time. See Insignares
v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1281 (11th Cir. 2014)
(per curiam) (holding that petitioner’s challenge of underly-
ing conviction following resentencing was not successive);
Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012) (same); John-
son v. United States, 623 F.3d 41 (2d Cir. 2010) (same); see also,
In re Lampton, 667 F.3d 585, 589–90 (5th Cir. 2012) (holding, in
circumstances almost identical to Kramer’s, that petitioner’s
section 2255 challenge of section 848 conviction after the va-
catur of an 846 conviction constituted a successive petition).
In our view, the real disagreement lies with Suggs, and
Kramer does not ask us to revisit our opinion in that case. In
addition, Kramer does not address what we see as the fun-
damental question underlying the circuit split: what consti-
tutes the petitioner’s “judgment”? The Eleventh Circuit con-
No. 14-3049 19
cluded, for example, that “[h]aving reviewed Magwood and
the cases of other circuits, we return to the basic proposition
[that] … there is only one judgment, and it is comprised of
both the sentence and the conviction.” Insignares, 755 F.3d at
1281. Having concluded that a conviction and sentence com-
prised one judgment, the Eleventh Circuit necessarily held
that a resentencing results in an entirely new judgment. As
such, the underlying conviction may then be challenged by a
first—not successive—section 2255 motion.
So, we view Suggs as controlling the outcome here. We
conclude that the district court properly characterized Kra-
mer’s section 2255 motion as successive, and the district
court correctly concluded that it lacked jurisdiction over
Kramer’s motion.
Finally, Kramer raised several other arguments in his
briefs to this court. We decline to reach them for two reasons.
First, we confine our review to the question specifically certi-
fied by the district court on appeal. And second, at oral ar-
gument, Kramer withdrew his final two arguments.
III. CONCLUSION
For the reasons above, we AFFIRM the judgment of the
district court.