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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:95cr4059-WS

vs. Case No. 4:05cv459-WS/WCS

LARRY COPELAND, 

Defendant.

 /

REPORT AND RECOMMENDATION TO DENY § 3582 MOTION

Defendant Larry Copeland filed a document titled "Motion to Modify Sentence

Title 18 U.S.C. § 3582(c)(2) [and] Judicial Notice of Adjudicative Facts Rule 201(b)." 

Doc. 299. 

Defendant asserts that this § 3582(c)(2) motion is not a successive motion under

28 U.S.C. § 2255, citing United States v. Armstrong, 347 F.3d 905 (11th Cir. 2003). Id.,

p. 2. Defendant asks the court to "take Judicial Notice of Adjudicative Facts, that have

altered the legal landscape concerning the mandatory nature of the Sentencing

Guidelines." Id. Defendant cites, inter alia, United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005), Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

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1

 As explained in Burke, "a claim that the sentence imposed is contrary to a

post-sentencing clarifying amendment is a non-constitutional issue that does not

provide a basis for collateral relief in the absence of a complete miscarriage of justice." 

152 F.3d at 1332. See also Lynn v. United States, 365 F.3d 1225, 1232, 1233 and n.

15 (11th Cir.), cert. denied, 125 S.Ct. 167 (2004) (collecting cases, including Burke). 

Case Nos. 4:95cr4059-WS and 4:05cv459-WS/WCS

2348, 147 L.Ed.2d 435 (2000). He asserts that this modification of the law applies nunc

pro tunc to the effective date of the Sentencing Guidelines on November 1, 1987, and

must apply retroactively here as a clarifying amendment. Doc. 299, p. 3. The

appropriate remedy, Defendant argues, is to resentence him without regard to drug

quantity. Id. 

Section 3582(c)(2) authorizes the court, in its discretion, to modify a term of

imprisonment if the sentencing range has subsequently been lowered by the

Sentencing Commission, if "consistent with applicable policy statements issued by the

Sentencing Commission." In Armstrong, the inmate asserted entitlement to modification

under Amendments 599, 600, and 635 to the Sentencing Guidelines. 347 F.3d at 907. 

The district court properly ruled that a prior unsuccessful § 2255 motion did not bar the

motion under § 3582, and that the defendant was not entitled to relief under §

3582(c)(2). Id. 

The Eleventh Circuit had considered retroactive application of a clarifying

amendment in the context of appeal or § 2255 motion, but this "bears no relevance to

determining retroactivity under § 3582(c)(2)." Id., at 908-909, citing Burke v. United

States, 152 F.3d 1329, 1332 (11th Cir.1998), cert. denied, 526 U.S. 1145 (1999)1 (other

citation omitted). "[O]nly amendments, clarifying or not, listed under subsection (c) of

1B1.10, and that have the effect of lowering the sentencing range upon which a

sentence was based, may be considered for reduction of a sentence under §

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2

 It was recommended in the first report and recommendation that relief be

denied on all but one of Defendant's § 2255 claims, and the case remanded for

appointment of counsel and an evidentiary hearing on that claim. Doc. 255. The

recommendation was adopted, doc. 264, and the second report and recommendation

was entered after the evidentiary hearing. 

Case Nos. 4:95cr4059-WS and 4:05cv459-WS/WCS

3582(c)(2)." 347 F.3d at 909. The court agreed with the circuits establishing this

"bright-line rule," and holding "that 'clarifying amendments' are no exception to this rule

and may only be retroactively applied on direct appeal of a sentencing or under a §

2255 motion." Id. at 909 (collecting cases). 

Defendant does not identify any amendment to the guidelines expressly listed

under § 1B1.10(c); indeed he does not identify any amendment made by the

Sentencing Commission. Instead, he asserts that Supreme Court precedent acts as a

"clarifying amendment" to the guidelines. Assuming that Booker (or the cases leading

up to it) could be considered a clarifying amendment, it is not listed in § 1B1.10(c) and

therefore could only apply retroactively – if at all – on appeal or § 2255 motion. It is long

past the time for appeal. Defendant is "in custody" and "claiming the right to be

released upon the ground that the sentence was imposed in violation of the Constitution

or laws of the United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack," and his Booker claim falls under the plain

language of § 2255. 

Defendant previously filed a § 2255 motion, which was denied with prejudice. 

Docs. 275-276 (report and recommendation as adopted by the court),2

 and 277

(judgment entered on December 14, 2000). Without deciding potential procedural

obstacles, the court found Defendant's supplemental Apprendi claim without merit, as

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3

 The Eleventh Circuit denied Defendant's motions for certificate of appealability

and leave to appeal in forma pauperis on August 16, 2001. Doc. 295. The court then

granted appointed counsel's motion to withdraw, and granted thirty days from January

28, 2002, for Defendant to file a motion for reconsideration of the August 16, order. 

Doc. 298. That was the last docket entry in this court until the current § 3582 motion

received on December 5, 2005. Either Defendant did not seek reconsideration within

the time allowed, or reconsideration was denied. 

Case Nos. 4:95cr4059-WS and 4:05cv459-WS/WCS

any error was harmless. Doc. 275, pp. 6-8. A certificate of appealability was denied by

this court and the Eleventh Circuit. Docs. 288 and 295. The Eleventh Circuit found

that, whether or not Apprendi applies retroactively on collateral review, Defendant's

Apprendi claim lacked merit. Doc. 295, p. 4.3 

As Defendant has already been denied § 2255 relief, he must obtain

authorization from the Eleventh Circuit before filing a second or successive § 2255

motion. § 2255 (referencing § 2244); § 2255 Rule 9 (amended effective December 1,

2004) ("[b]efore presenting a second or successive motion, the moving party must

obtain an order from the appropriate court of appeals authorizing the district court to

consider the motion, as required by 28 U.S.C. § 2255, para. 8."). Authorization for filing

a successive motion raising Booker has been denied in this circuit. In re Anderson, 396

F.3d 1336, at 1339 (11th Cir. 2005) (denying leave to file successive motion as the

Supreme Court has not made Booker or Blakely retroactive on collateral review). See

also Varela v. United States, 400 F.3d 864, 867 (11th Cir.), cert. denied, U.S. ,

126 S.Ct. 312 (2005) (Blakely and Booker do not apply retroactively on collateral review

even when raised in initial § 2255 motion). 

As this is essentially a second or successive § 2255 petition, and authorization

for filing has not been granted, this court lacks jurisdiction to consider it. Hubbard v.

Campbell, 379 F.3d 1245, 1246 (11th Cir.), cert. denied, 125 S.Ct. 15 (2004) (district

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Case Nos. 4:95cr4059-WS and 4:05cv459-WS/WCS

court lacked jurisdiction to entertain second or successive petition, where petitioner had

not obtained authorization for filing it). 

It is therefore respectfully RECOMMENDED that Defendant's motion to modify

sentence and for judicial notice, doc. 299, be SUMMARILY DISMISSED as

authorization for filing a second or successive § 2255 motion has not been granted. 

IN CHAMBERS at Tallahassee, Florida, on January 4, 2006.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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