United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE
and his co-defendants were arrested in the Eastern Pacific
Ocean while transporting approximately 1100 kilograms of
cocaine. Restrepo is imprisoned for 210 months based on his
guilty plea to possession with the intent to distribute
cocaine. In 2004 Restrepo was sentenced and, based on the
appeal waiver in the plea agreement, his subsequent appeal
was unsuccessful. Restrepo's earlier motion under 28
U.S.C. § 2255 was denied. (Docs. 268 and 269 in
03-cr-332) Restrepo again moves under Section 2255 and seeks
the retroactive application of an amendment to the Sentencing
Guidelines. (Doc. 1)
Rules Governing Section 2255 Cases, requires both a
preliminary review of the motion to vacate and a summary
dismissal “[i]f it plainly appears from the face of the
motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief .
. . .” Accord Wright v. United States, 624
F.2d 557, 558 (5th Cir. 1980) (finding the summary dismissal of
a Section 2255 motion was proper “[b]ecause in this
case the record, uncontradicted by [defendant], shows that he
is not entitled to relief”); Hart v. United
States, 565 F.2d 360, 361 (5th Cir. 1978) (“Rule
4(b) [Rules Governing § 2255 Proceedings], allows the
district court to summarily dismiss the motion and notify the
movant if ‘it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in
the case that the movant is not entitled to relief . . .
.'”). See United States v. Deal, 678 F.2d
1062, 1065 (11th Cir. 1982) (citing Wright and
Hart). Restrepo's motion is barred.
earlier challenge to this same conviction was denied on the
merits. Restrepo cannot pursue a second or successive motion
without authorization from the Eleventh Circuit Court of
Appeals. “Before a second or successive application
permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A).
Felker v. Turpin, 518 U.S. 651, 664 (1996); Dunn
v. Singletary, 168 F.3d 440, 442 (11th Cir. 1999). This
new action is, therefore, a second or successive action that
is subject to specific restrictions because a district court
lacks jurisdiction to review a second or successive motion
without the requisite authorization from the circuit court.
Burton v. Stewart, 549 U.S.147, 157 (2007)
(“Burton neither sought nor received authorization from
the Court of Appeals before filing his 2002 petition, a
‘second or successive' petition challenging his
custody, and so the District Court was without jurisdiction
to entertain it.”).
Restrepo's motion lacks merit. Restrepo asserts
entitlement to the retroactive application of Amendment 794,
United States Sentencing Guidelines, which clarifies
entitlement to a decrease of the offense level based on the
defendant's role in the offense. The amendment became
effective in 2015; Restrepo was sentenced more than fifteen
years earlier. Restrepo erroneously asserts entitlement to
the retroactive application of Amendment 794 based on
United States v. Quintero-Leyva, 823 F.3d 519, 523
(9th Cir. 2016), which holds “that [Amendment 794]
applies retroactively to direct appeals.” Restrepo is
seeking relief on collateral review not on direct appeal.
Under Section 1B1.10(a)(2)(A), an amendment to the Sentencing
Guidelines is not applied retroactively unless it is listed
in Section 1B1.10(d). Amendment 794 is not listed in the
latter section and is, therefore, not afforded retroactive
effect. As a consequence, Restrepo's motion lacks merit.
an applicant cannot appeal a district court's denial of
relief under Section 2255 unless either the district court or
the circuit court issues a certificate of appealability
(“COA”). However, as Williams v.
Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007), explains
(in the context of an application for the writ of habeas
corpus under Section 2254), a COA cannot issue in this action
because the district court cannot entertain the motion to
vacate to review the second or successive application:
Because he was attempting to relitigate previous claims that
challenge the validity of his conviction, Williams was
required to move this Court for an order authorizing the
district court to consider a successive habeas petition.
See 28 U.S.C. § 2244(b)(3)(A). Without such
authorization, the district court lacked subject matter
jurisdiction to consider the successive petition, and
therefore could not issue a COA with respect to any of these
See United States v. Robinson, 579 Fed. App'x
739, 741 n.1 (11th Cir. 2014) (applying Williams in
determining that the district court lacked jurisdiction
because the motion to alter or amend a judgment under Rule
60(b), Federal Rules of Civil Procedure, was actually an
impermissible second or successive motion under Section 2255
and, as a consequence, “a COA was not required to
appeal the denial of the motion”).
the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is
DISMISSED. The clerk must close this case and enter a copy of
this order in the criminal action.
 Unless later superseded by Eleventh
Circuit precedent, a Fifth Circuit decision issued before
October 1, 1981, binds this court. Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
 “Unpublished opinions are not
considered binding precedent, but they may be cited as
persuasive authority.” ...