Filed: Dec. 13, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT DEC 13, 2010 No. 09-14889 JOHN LEY Non-Argument Calendar CLERK _ D. C. Docket No. 88-00045-CR-JOF-1 EUGENE POWELL GRIFFIN, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (December 13, 2010) Before CARNES, HULL and FAY, Circuit Judges. PER CURIAM: Eugene Po
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT DEC 13, 2010 No. 09-14889 JOHN LEY Non-Argument Calendar CLERK _ D. C. Docket No. 88-00045-CR-JOF-1 EUGENE POWELL GRIFFIN, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (December 13, 2010) Before CARNES, HULL and FAY, Circuit Judges. PER CURIAM: Eugene Pow..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 13, 2010
No. 09-14889 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 88-00045-CR-JOF-1
EUGENE POWELL GRIFFIN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 13, 2010)
Before CARNES, HULL and FAY, Circuit Judges.
PER CURIAM:
Eugene Powell Griffin, a federal prisoner, appeals pro se the district court’s
denial of his motion to correct an illegal sentence. After review, we affirm.
I. BACKGROUND FACTS
A. Griffin’s Convictions and Sentences
In November 1988, Griffin was indicted for possessing a firearm after
having three or more convictions for violent felonies, in violation of 18 U.S.C. §§
922(g) and 924(e) (“Count 1”), and possessing with the intent to distribute cocaine
hydrochloride, in violation of 21 U.S.C. § 841 (“Count 2”). The indictment
alleged that (1) Griffin possessed the firearm and cocaine on May 19, 1987, and (2)
Griffin was convicted of burglary in 1958, 1962 and 1965 and was convicted of
murder in 1971.
In March 1989, a jury convicted Griffin on both counts. In May 1989, the
district court imposed a life sentence on the firearm conviction in Count 1 and a
consecutive twenty-year sentence on the drug conviction in Count 2. On direct
appeal, this Court affirmed Griffin’s convictions and sentences. See United States
v. Griffin, No. 89-8453 (11th Cir. Aug. 23, 1990) (unpublished).
B. 2002 Motion to Correct Illegal Sentence
In August 2002, Griffin filed a motion to correct an illegal sentence.
Griffin’s motion was brought under former Federal Rule of Criminal Procedure
2
35(a).1 Griffin’s motion argued: (1) that his sentence under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), was invalid because the burglary
convictions used to enhance his sentence were vacated by a state court; and (2) that
he was improperly sentenced under the Sentencing Guidelines, which became
effective on November 1, 1987, for offenses committed in May 1987. The district
court denied Griffin’s former Rule 35(a) motion.
On appeal, this Court affirmed. United States v. Griffin, 162 F. App’x 935
(11th Cir. 2006) (“Griffin I”). The Court noted that “[a]t the time of sentencing,
Griffin had four prior state convictions for violent felonies–three burglary
convictions from 1958, 1965, and 1967, and one murder conviction from 1972–
and therefore qualified for a sentence under the ACCA” and the sentencing court
had “sentenced Griffin to life in prison, the maximum sentence allowed by
§ 924(e)(1).” Id. at 936. The Court agreed with the district court that “former Rule
1
Because Griffin committed his firearm and drug offenses before November 1, 1987, his
case is governed by former Rule 35(a), which permits the district court to correct “an illegal
sentence” at any time. See United States v. Jackson, 923 F.2d 1494, 1496 n.1 (11th Cir. 1991).
The current version of Rule 35(a) permits a district court to correct only “arithmetical, technical,
or other clear error” in a sentence and only within fourteen days after sentencing. Fed. R. Crim.
P. 35(a) & advisory committee’s note to 1991 amendments (explaining that “[t]he authority to
correct a sentence under this subdivision is intended to be very narrow and to extend only to
those cases in which an obvious error or mistake has occurred in the sentence, that is, errors
which would almost certainly result in a remand of the case to the trial court”); see also United
States v. Lett,
483 F.3d 782, 788 (11th Cir. 2007) (explaining that Rule 35(a)’s “narrow
corrective power [is] limited in scope to those obvious errors that result in an illegal sentence or
that are sufficiently clear that they would, as the committee notes specify, almost certainly result
in a remand of the case to the trial court for further action” (quotation marks omitted)).
3
35(a) is not available as a means for Griffin to challenge his sentence under the
ACCA” because it was legal when it was imposed and that “[t]he proper vehicle to
advance Griffin’s argument for relief is a motion pursuant to 28 U.S.C. § 2255.”
Id. at 937.
C. Current Motion to Correct Illegal Sentence
In July 2009, Griffin pro se filed this motion under former Rule 35(a). This
time, Griffin argued: (1) that he was sentenced to life imprisonment on the firearm
conviction in Count 1 under the Comprehensive Crime Control Act, 18 U.S.C.
§ 924(c)(3), which took effect in November 1987, after he committed his offenses
in May 1987; and (2) that, at the time he committed his offenses, the maximum
penalty for a violation of § 924(c) was five years’ imprisonment, making his life
sentence illegal.
The district court denied Griffin’s 2009 motion, which Griffin brought under
former Rule 35(a). The district court found that Griffin was sentenced under 18
U.S.C. § 924(e), not § 924(c). Citing our decision in Griffin I, the district court
found that this Court had “already determined as a matter of final judgment” that
Griffin’s sentence under § 924(e)(1) was not error and that it could not “revisit that
sentencing decision.” Griffin appealed.
II. DISCUSSION
4
A sentence is illegal within the meaning of former Rule 35(a) if: (1) it is in
excess of the statutory maximum; (2) it imposes multiple terms of imprisonment
for the same offense; or (3) “the terms of the sentence itself [are] legally or
constitutional invalid in any other respect.” See Hill v. United States, 368 U.S.
424, 430,
82 S. Ct. 468, 472 (1962).2 If former Rule 35(a) applies to the
defendant’s case, then former Rule 35(a) may be used to correct a sentence that
violates the Ex Post Facto Clause. See United States v. Lightsey,
886 F.2d 304,
305 (11th Cir. 1989).3
On appeal, Griffin argues that his life sentence is illegal because it: (1) was
imposed pursuant to 18 U.S.C. § 924(c)(3), which he contends went into effect in
November 1987, after he committed his offenses in May 1987, thus violating the
Ex Post Facto Clause;4 and (2) exceeds the then-authorized maximum five-year
2
As noted in footnote 1, supra, the current version of Rule 35(a) is quite different.
3
In reviewing a district court’s ruling on a motion brought under former Rule 35(a), we
review factual findings for clear error, and the application of the facts to the law de novo.
United States v. Sjeklocha, 114 F.3d 1085, 1087 (11th Cir. 1997).
4
Contrary to Griffin’s contention, the Comprehensive Crime Control Act (“CCCA”) was
passed and went into effect in 1984, not 1987. See Pub. L. No. 98-473, Title II, 98 Stat. 2028,
2138 (1984). Furthermore, the CCCA did not amend § 924(c)(3) to impose a sentence of life
without parole if a § 922(g) defendant had three prior violent felony convictions. Rather, the
CCCA added then-section 924(c), which provided a mandatory minimum five-year sentence if a
defendant used or carried a firearm during and in relation to the commission of a crime of
violence, and a mandatory minimum ten-year sentence if it was the defendant’s second or
subsequent § 924(c) conviction. See id. § 1005(a). The “three-strikes” provision to which
Griffin appears to be referring was enacted in 1994 as part of the Violent Crime Control and Law
Enforcement Act and is codified at 18 U.S.C. § 3559(c)(1). See Pub. L. No., 103-322, Title VII,
5
penalty. Griffin’s arguments are foreclosed by the law-of-the-case doctrine.
Under the law-of-the-case doctrine, an appellate decision binds all
subsequent proceedings in the same case unless one of the following exceptions
apply: (1) substantially different evidence is presented in a subsequent trial; (2)
controlling authority has since made a contrary decision of law applicable to that
issue; or (3) the prior decision is clearly erroneous and would result in manifest
injustice if implemented. United States v. Stinson, 92 F.3d 466, 469 (11th Cir.
1996).
In Griffin I, a prior panel of this Court concluded that Griffin’s life sentence
was imposed pursuant to the ACCA, 18 U.S.C. § 924(e)(1). We are bound by that
decision unless Griffin shows that one of the three exceptions applies, which he has
not. The first exception is inapplicable given that no trial was held after the Griffin
I decision. As for the second exception, Griffin has not identified any subsequent
controlling authority that contradicts Griffin I. The third exception also is not
satisfied. Griffin has not shown Griffin I is clearly erroneous, much less that
Griffin I results in manifest injustice.
Griffin points to his judgment of conviction, which states that Griffin was
found guilty of violating § 922(g) and “924(3) as charged in count one of the
§ 70001(2), 108 Stat. 1982 (1994).
6
indictment.” (Emphasis added.) Despite this typographical error in the judgment,5
the record clearly establishes that Griffin was in fact convicted and sentenced
under § 924(e), not § 924(c)(3). The indictment charged Griffin with violating
§ 924(e), and the jury convicted Griffin under that statute. At sentencing, the
parties acknowledged that Griffin was being sentenced as an armed career criminal
under the ACCA. Indeed, Griffin’s first former Rule 35(a) motion acknowledged
that his life sentence was imposed pursuant to the ACCA and § 924(e).
Because no exception to the law-of-the-case doctrine applies, we are bound
by Griffin I’s conclusion that Griffin’s life sentence was imposed pursuant to the
ACCA and § 924(e). And, given that Griffin was sentenced under the version of
§ 924(e) in effect at the time he committed his offenses, he has no Ex Post Facto
Clause problem. Furthermore, his life sentence does not exceed § 924(e)’s
statutory maximum of life imprisonment. See 18 U.S.C. § 924(e) (1987)
(authorizing an imprisonment term of “not less than fifteen years”); United States
v. Simmons, 924 F.2d 187, 192-93 (11th Cir. 1991) (affirming a fifty-year sentence
under § 924(e) and noting that, because § 924(e) does not specify a maximum
5
On June 12, 1989, when Griffin’s judgment of conviction was signed, there was no
§ 924(3). See 18 U.S.C. § 924 (1989). Subsection (e), under which Griffin actually was
charged, convicted and sentenced, was added to § 924 in 1986, a year before Griffin committed
his § 924(e) offense and three years before his judgment of conviction was entered. See Pub. L.
No. 99-308, § 104(a)(4), 100 Stat. 456 (1986) (adding subsection (e)); Pub. L. No. 99-570, Title
I, § 1402, 100 Stat. 3207-39 (1986) (adding subsection (e)(1) and (e)(2)(A)).
7
sentence, life imprisonment is the putative statutory maximum). Accordingly,
Griffin’s life sentence for his firearm offense under 18 U.S.C. §§ 922(g) and
924(e) in Count 1 is not illegal within the meaning of former Rule 35(a).
For these reasons, the district court properly denied Griffin’s former Rule
35(a) motion.
AFFIRMED.
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