IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, §

§

V. § No. 3:03-cr-159-G (02)

§

DAVID HILL, §

§

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendant David Hill, a federal prisoner, filed pro se a motion for 2 level

reduction (Amendment 782) [Dkt. No. 148] (the “Motion”). Senior United States

District Judge A. Joe Fish referred the Motion to the undersigned United States

magistrate judge for hearing, if necessary, and for recommendation under 28 U.S.C.

§ 636(b). See Dkt. No. 149.

The undersigned enters these findings of fact, conclusions of law, and

recommendation that, to the extent that Hill requests reconsideration of the Court’s

denial of his motion for sentence reduction under 18 U.S.C. § 3582(c)(2),

reconsideration should be denied and, to the extent that Hill raises a post-conviction

challenge to the initial calculation of his guideline sentence, that challenge is made

through an unauthorized successive motion under 28 U.S.C. § 2255, and the Court,

construing the Motion as such, should transfer itto the United States Court of Appeals

for the Fifth Circuit for appropriate action.

The Court should further direct the Clerk of the Court to open for statistical

purposes a new Section 2255 case (nature of suit 510 directly assigned, per Special

Order 3-250,to Judge Fish and the undersigned) and close the same on the basis of any

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order accepting or adopting this recommendation.

Applicable Background

As the Court recounted in August 2018, when Hill sought to again attack his

criminal judgment, relying that time on a recent decision from the United States

Supreme Court to argue that this Court erred in calculating his sentence under the

United States Sentencing Guidelines,

[a] jury found Hill guilty of conspiracy to manufacture and possess with

the intent to distribute methamphetamine. See United States v. Hill,

3:03-cr-159-G (02) (N.D. Tex.), Dkt. No. 68. He was sentenced to prison

for 360 months in 2003. See id.

After his criminal judgment was affirmed on direct appeal, see

United States v. Hill, 623 F. App’x 200 (5th Cir. 2015), Hill filed his first

Section 2255 motion, see Hill v. United States, 3:07-cv-594-G (N.D. Tex.).

The Court denied that motion on its merits. See Hill v. United States,

3:07-cv-594-G (N.D. Tex.), Dkt. No. 12. 

Hill later filed a successive Section 2255 motion, which the Court

transferred to the United States Court of Appeals for the Fifth Circuit.

See Hill v. United States, 3:13-cv-4456-G-BN (N.D. Tex.), Dkt. No. 7. Hill

appealed that transfer, and the Fifth Circuit affirmed this Court’s

judgment. See Hill v. United States, 623 F. App’x 200, 201 (5th Cir. 2015).

Hill v. United States, No. 3:18-cv-2127-G-BN, 2018 WL 4471791, at *1 (N.D. Tex. Aug.

21, 2018), rec. accepted, 2018 WL 4471706 (N.D. Tex. Sept. 17, 2018), authorization to

file a successive Section 2255 motion dismissed, No. 18-11240 (5th Cir. Nov. 1, 2018).

Further applicable here, the Court denied Hill’s 2016 motion to reduce his

sentence under Section 3582(c)(2) based on retroactive 2014 Drug Guidelines

Amendment 782, after the probation office found that Amendment 782 did not have the

effect of lowering Hill’s applicable guideline sentence – although his total offense level

dropped by 2 points (from 41 to 39), the guideline imprisonment range remained 360

months to Life. See Dkt. Nos. 137, 138, 139, 140, & 141.

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Hill now contends, through the Motion, that, “had there not been plain error in

the calculation of the Sentencing Guidelines in my case, I would qualify for

Amendment 782.” Dkt. No. 148 at 2. In support, he argues that an error exists in the

initial presentence report’s calculation of his base offense level (based on the drug

amount for which he was held accountable). See id. at 2-5.

Legal Standards and Analysis

First, the Court should deny Hill’s request to reconsider its denial of his 2016

Section 3582(c)(2) motion based on Amendment 782. As the United States Court of

Appeals for the Eleventh Circuit observed in a related context, in reducing a sentence

under Section 3582(c)(2), the district court may not reconsider other components of a

defendant’s guideline sentence calculation not affected by the applicable retroactive

amendment (such as, there, his “original criminal history calculations”).

[T]he district court correctly recognized that it was prohibited from doing

so in a § 3582(c)(2) proceeding, as § 1B1.10 provides that “the court shall

substitute only the amendments listed in subsection (c) for the

corresponding guideline provisions that were applied when the defendant

was sentenced and shall leave all other guideline application decisions

unaffected.” U.S.S.G. § 1B1.10(b)(1). Nairne’s contention that Booker

rendered § 1B1.10 advisory is without merit, as we have recently held

“that a district court is bound by the limitations on its discretion imposed

by § 3582(c)(2) and the applicable policy statements by the Sentencing

Commission.” United States v. Melvin, 556 F.3d 1190, 1190 (11th Cir.

2009) (emphasis added). Thus, the district court correctly concluded that

it lacked authority to reconsider Nairne’s original criminal history

calculations. As a result, Nairne’s argument that his reduced sentence

was unreasonable is without merit.

United States v. Naine, 334 F. App’x 228, 231 (11th Cir. 2009) (per curiam) (citation

modified); see also Dillon v. United States, 560 U.S. 817, 827 (2010) (“Consistent with

the limited nature of § 3582(c)(2) proceedings, § 1B1.10(b)(2) also confines the extent

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of the reduction authorized. Courts generally may ‘not reduce the defendant’s term of

imprisonment under 18 U.S.C. § 3582(c)(2) ... to a term that is less than the minimum

of the amended guideline range’ produced by the substitution. § 1B1.10(b)(2)(A).”);

United States v. Martin, 491 F. App’x 500, 501 (5th Cir. 2012) (per curiam) (“[T]he

principles of United States v. Booker, 543 U.S. 220 (2005), and its progeny do not apply

to § 3582(c)(2) proceedings.” (citations omitted)).

As Section 3582(c) does not authorize the Court to provide the relief Hill seeks,

and because “[a] district court does not have inherent authority to modify a previously

imposed sentence; it may do so only pursuant to statutory authorization,” United

States v. Hernandez, No. 3:08-cr-268-B (03), 2016 WL 1039540, at *2 (N.D. Tex. Feb.

19, 2016) (quoting United States v. Martinez, No. 1:09-cr-74 TS, 2014 WL 2515315 (D.

Utah June 4, 2014)), rec. accepted, 2016 WL 1028236 (N.D. Tex. Mar. 15, 2016), the

Court should consider the Motion as made under the only statutory authorization

potentially applicable – Section 2255.

Because Hill has already pursued an initial Section 2255 motion, the Motion is

an unauthorized successive Section 2255 motion in disguise. And Hill’s failure to obtain

authorization from the United States Court of Appeals for the Fifth Circuit under 28

U.S.C. § 2244(b)(3) before making this challenge “acts as a jurisdictional bar to the

district court’s asserting jurisdiction over [it] until [the Fifth Circuit grants him]

permission to” make this challenge through a successive Section 2255 motion. United

States v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (citations omitted); accord Crone v.

Cockrell, 324 F.3d 833, 836 (5th Cir. 2003); Williams v. Thaler, 602 F.3d 291, 301 (5th

Cir. 2010). Thus,

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it is appropriate for the Court to dismiss the [construed] successive § 2255

motion without prejudice pending review by a three-judge panel of the

Fifth Circuit[, but] it is also appropriate to transfer the successive motion

to the Fifth Circuit for a determination of whether [Hill] should be

allowed to file the successive motion in the district court.

United States v. King, Nos. 3:97-cr-0083-D-01 & 3:03-cv-1524-D, 2003 WL 21663712,

at *1 (N.D. Tex. July 11, 2003) (citing Henderson v. Haro, 282 F.3d 862, 864 (5th Cir.

2002); In re Epps, 127 F.3d 364, 365 (5th Cir. 1997)), rec. adopted, 3:03-cv-1524-D, Dkt.

No. 7 (N.D. Tex. July 28, 2003).

The undersigned finds that the Court should transfer the Motion to the Fifth

Circuit for appropriate action.

Recommendation

To the extent that Defendant David Hill’s pro se motion for 2 level reduction

(Amendment 782) [Dkt. No. 148] (the “Motion”) requests reconsideration ofthe Court’s

denial of his motion for sentence reduction under 18 U.S.C. § 3582(c)(2),

reconsideration should be denied and, to the extent that Hill raises a post-conviction

challenge to the initial calculation of his guideline sentence, that challenge is made

through an unauthorized successive motion under 28 U.S.C. § 2255, and the Court,

construing the Motion as such, should transfer itto the United States Court of Appeals

for the Fifth Circuit for appropriate action. The Court should further direct the Clerk

of the Court to open for statistical purposes a new Section 2255 case (nature of suit 510

directly assigned, per Special Order 3-250, to Senior United States District Judge A.

Joe Fish and United States Magistrate Judge David L. Horan) and close the same on

the basis of any order accepting or adopting this recommendation.

A copy of these findings, conclusions, and recommendation shall be served on all

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parties in the manner provided by law. Any party who objects to any part of these

findings, conclusions, and recommendation must file specific written objections within

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).

In order to be specific, an objection must identify the specific finding or

recommendation to which objection is made, state the basis for the objection, and

specify the place in the magistrate judge’s findings, conclusions, and recommendation

where the disputed determination is found. An objection that merely incorporates by

reference or refers to the briefing before the magistrate judge is not specific. Failure

to file specific written objections will bar the aggrieved party from appealing the

factual findings and legal conclusions of the magistrate judge that are accepted or

adopted by the district court, except upon grounds of plain error. See Douglass v.

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: April 30, 2019

_________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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