1

DLD-135 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1107

___________

UNITED STATES OF AMERICA

v.

TERRANCE MANUEL,

Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 07-cr-00177)

District Judge: Honorable Eduardo C. Robreno

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit LAR 27.4 and I.O.P. 10.6

March 10, 2011

Before: BARRY, FISHER AND ROTH, Circuit Judges

(Opinion filed: May 3, 2011 )

_________

OPINION

_________

PER CURIAM

Terrance Manuel appeals pro se from the order of the District Court denying what 

it apparently construed as a motion for sentencing relief. We will vacate and remand for 

further proceedings.
2

I.

In 2008, Manuel was convicted of four federal crimes, including possession with 

intent to distribute five grams or more of cocaine base (“crack cocaine”) in violation of 

21 U.S.C. §§ 841(a)(1) & (b)(1)(B). The District Court sentenced him below the 

Sentencing Guidelines range to a term of 271 months in prison. We affirmed his 

conviction, see United States v. Manuel, 342 F. App’x 844, 848 (3d Cir. 2009), and the 

United States Supreme Court denied certiorari, see Manuel v. United States, 131 S. Ct. 

258 (2010).

Manuel mailed the motion at issue here to the District Court shortly before the 

denial of certiorari, and it arrived after that ruling. Manuel captioned the motion as a 

“Motion to Supplement Brief or Leave to Supplement Proceeding Regarding the Newly 

Enacted 18:1 Ration [sic].” Manuel asserted that he was still on certiorari review and 

asked the District Court to “take into consideration” two claims. First, he asserted that he 

is eligible for relief under the Fair Sentencing Act of 2010, which increased the amount 

of crack cocaine that triggers a mandatory minimum sentence under 21 U.S.C. § 

841(b)(1)(B). See United States v. Reevey, 631 F.3d 110, 114 (3d Cir. 2010). Second, 

he asserted that he is eligible for relief under the related Amendment 748 to U.S.S.G. § 

2D1.1(c), which decreased the base offense level applicable to offenses involving crack 

cocaine. See U.S. Sentencing Guidelines Manual, Supp. to 2010 Guidelines Manual, 

Amend. 748 (2010). The District Court directed the Government to respond to the 

motion, which it did on the merits. Manuel then sent the District Court a letter, in which 
3

he requested counsel and clarified that “I have not asked for any type of reduction or 

anything just to supplement my brief so far.” By order entered January 4, 2011, the 

District Court concluded that Manuel’s claims lack merit and denied his motion with 

prejudice. Manuel appeals. We have jurisdiction over the District Court’s final order 

pursuant to 28 U.S.C. § 1291.1

II.

Manuel never affirmatively sought relief on the merits of his claims. Instead, the 

only relief he requested was leave to supplement his “brief” on direct appeal

(presumably, his certiorari petition). The District Court nevertheless denied his claims 

with prejudice. The District Court did not specify the procedural mechanism under 

which it construed Manuel as proceeding or the basis for its jurisdiction to reach the 

merits of his claims. 

If Manuel had mentioned only Amendment 748 to the Sentencing Guidelines, then 

we might be inclined to construe his motion in the first instance as one for a sentence 

reduction under 18 U.S.C. § 3582(c)(2). Manuel’s reference to the Fair Sentencing Act, 

however, renders this approach problematic. A claim seeking retroactive application of 

the Fair Sentencing Act may not be cognizable on a motion for a sentence reduction. See

18 U.S.C. § 3582(c)(2) (authorizing certain reductions “based on a sentencing range that 

has subsequently been lowered by the Sentencing Commission”). Although we do not 

 

1

The District Court’s order also denied Manuel’s request for counsel. Manuel has not 

argued that the District Court abused its discretion in that regard and, in light of our 
4

decide the issue, such a claim may be cognizable, if at all, only by means of a habeas 

petition under 28 U.S.C. § 2241 or a motion attacking the sentence under 28 U.S.C. § 

2255. 

Treating Manuel’s motion as either type of filing would have various 

consequences. Treating it as a § 2241 petition could subject any future § 2241 petition he

might file to dismissal as an abuse of the writ. See Zayas v. INS, 311 F.3d 247, 256-57 

(3d Cir. 2002). And treating it as a § 2255 motion would subject any future § 2255 

motion he might wish to file to the provisions restricting the filing of a “second or 

successive” motion. 28 U.S.C. § 2255(h). For that reason, district courts must provide 

notice to pro se litigants before characterizing their filings as § 2255 motions and 

reaching the merits. See Castro v. United States, 540 U.S. 375, 383 (2003); United States 

v. Miller, 197 F.3d 644, 652 (3d Cir. 1999). The District Court did not issue any such 

notice in this case. Treating Manuel’s motion as one under § 2255 also would implicate 

our jurisdiction, because Manuel could not then appeal unless the District Court or we 

issued a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B).2

Accordingly, we will vacate the District Court’s order denying Manuel’s claims on 

the merits and remand for further proceedings. In that regard, we note that the only relief 

Manuel ever requested was to supplement his “brief” on direct appeal. Because his direct 

 

disposition, we need not address the issue.

2 Manuel evidently intends to file an actual § 2255 motion. In his letter to the District 

Court, he asked “is my 2255 time running” and requested transcripts of his trial and 

sentencing, which the District Court has provided.
5

appeal had concluded by the time his motion reached the District Court, the District 

Court may wish to simply treat the motion on its own terms and dismiss it as moot. The 

District Court may also wish to ascertain whether Manuel affirmatively seeks relief and 

determine in the first instance the proper procedural mechanism for doing so. We 

appreciate the District Court’s willingness to liberally construe Manuel’s pro se filing, 

and we have no reason to question its resolution of the merits.3 For the reasons explained 

above, however, we will remand for further proceedings. Manuel’s motion for the 

appointment of counsel on appeal is denied. 

 

3

The District Court determined that Manuel is not eligible for relief under 

Amendment 748 on the sole ground that the Sentencing Commission has not made it 

retroactive. For informational purposes, we note that such a conclusion ordinarily 

should result in a dismissal without prejudice rather than a dismissal with prejudice. 

See United States v. Williams, 630 F.3d 44, 53 (1st Cir. 2010); United States v. Wise, 

515 F.3d 207, 221 (3d Cir. 2008).