USA v. Nathan Cain Waites

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11588
Non-Argument Calendar
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D.C. Docket No. 1:06-cr-00431-VEH-JEO-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllll llPlaintiff - Appellee,
versus
NATHAN CAIN WAITES,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(December 6, 2012)
Before HULL, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
Nathan Waites, proceeding pro se, appeals the denial of his 18 U.S.C.
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§ 3582 motion to modify his term of imprisonment. Because the district court’s
conclusion it lacked authority to grant the motion was correct, we affirm.
Waites pleaded guilty to three offenses related to possession and
distribution of methamphetamine in 2007 and executed a sentence appeal waiver.
The presentence investigation report (PSI) prepared for his sentencing assigned
Waites two criminal history points based upon two prior Alabama state
convictions. But the PSI noted Waites was subject to a 10-year statutory-
minimum sentence, so his guidelines range was 120 to 121 months’ imprisonment.
The district court sentenced Waites to 120 months.
Six months later, in January of 2008, Waites filed a 28 U.S.C. § 2255
motion to correct his sentence, contending the sentencing court had incorrectly
calculated his criminal history points. The district court denied the motion. On
January 13, 2012, Waites filed the instant § 3582 motion, asking for a sentence
reduction based on the same issue he raised in his § 2255 motion, as well as the
Supreme Court’s decision in Pepper v. United States, 562 U.S. — , 131 S. Ct.
1229 (2011), and Amendments 706, 711, and 750 to the sentencing guidelines.
The district court also denied that motion, and this is Waites’s appeal.
We review de novo the district court’s authority to modify a defendant’s
sentence under § 3582. United States v. Liberse, 688 F.3d 1198, 1200 n.1 (11th
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Cir. 2012). Under § 3582, a court may modify an inmate’s term of imprisonment
only in limited circumstances. None of those circumstances are present here.
Waites is well beyond the jurisdictional time period for correcting the
purported guidelines calculation error he identifies. See 18 U.S.C.1
§ 3582(c)(1)(B) (permitting sentence modification based upon Rule 35); Fed. R.
Crim. P. 35(a) (2007) (providing a seven-day period within which to seek
correction of a sentence resulting from arithmetic, technical, or clerical errors);
United States v. Phillips, 597 F.3d 1190, 1196-97 (11th Cir. 2010) (recognizing
that Rule 35(a)’s time limit is jurisdictional). A district court may not modify a
sentence simply because it may have been procedurally unreasonable at the time it
was rendered. See id. at 1195 (“[A]bsent other express statutory authority,
modification of an imprisonment sentence can only be done pursuant to Rule
35.”). And Pepper held only that a district court could take into account a
defendant’s subsequent rehabilitation once it already had authority to resentence
him. 131 S. Ct. at 1249. The decision does not provide that post-sentencing
rehabilitation itself opens the door to sentence modification. See 18 U.S.C.
Although this contention could be the proper subject of a § 2255 motion, Waites has1
already filed a § 2255 motion on that basis and did not seek permission to file a second one. See
United States v. Diaz-Clark, 292 F.3d 1310, 1316 (11th Cir. 2002) (holding that modification of
sentence based upon erroneous conclusion would violate § 3582(c)’s prohibition where
defendant had previously filed a § 2255 motion and had not obtained permission to file a
second).
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§ 3582(c) (generally prohibiting a district court from modifying a term of
imprisonment once imposed). Finally, none of the sentencing-guidelines
amendments Waites identifies would have lowered his guidelines range because
he was convicted of methamphetamine offenses and those amendments relate only
to crack-cocaine offenses. See § 3582(c)(2).
Accordingly, the district court lacked authority to modify Waites’s term of
imprisonment and, therefore, correctly denied his § 3582 motion.
AFFIRMED.
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