Submitted: November 15, 2018
from United States District Court for the District of
Nebraska - Omaha
BENTON, BEAM, and ERICKSON, Circuit Judges.
BENTON, CIRCUIT JUDGE.
2007, a jury convicted Charmar Adonis Lareese Brown of one
count of conspiring to distribute more than 1, 000 kilograms
of marijuana (count 1), one count of possessing with
intent to distribute more than 100 kilograms of marijuana
(count 6), and three counts of using and carrying a
firearm during a drug-trafficking crime (counts 2, 4,
7). At sentencing, the district court orally sentenced
him to concurrent terms of life and 480 months on counts 1
and 6, and to consecutive terms of 120 months, 300 months,
and 300 months on counts 2, 4, and 7. The judgment form
erroneously said that the sentence on count 6 was life.
appealed. This court vacated his conviction on count 7, but
otherwise affirmed. United States v. Brown, 560 F.3d
754, 772 (8th Cir. 2009). On remand, at the resentencing
hearing, the parties agreed the court's only job was to
vacate the sentence on count 7. The court entered a new
judgment, removing the 300-month sentence on count 7 but
leaving the other sentences unchanged. Brown did not appeal.
filed his first 28 U.S.C. § 2255 motion in 2011. The
district court denied it; this court denied a certificate of
appealability. He filed a second 2255 motion in 2013. The
district court denied it as a successive 2255 motion that the
court of appeals had not authorized under 2255(h). This court
denied a certificate of appealability. He filed a third 2255
motion in 2016, asserting (in part) that sentencing and
resentencing counsel were ineffective for failing to object
to the unconstitutional life sentence on count 6. The
district court denied the motion as successive without
authorization, and denied a certificate of appealability.
Brown asked this court to remand or, in the alternative, to
issue a certificate of appealability. This court directed the
district court "to correct its judgment to reflect that
Appellant Charmar Brown's sentence on Count 6 is 480
months." This court then denied the motion to remand as
moot and dismissed the appeal. The district court corrected
the judgment on count 6 as instructed and filed a Second
Amended Judgment with a sentence of 480 months on count 6.
now appeals that Judgment. He argues that it is a substantive
change and a new judgment. He then seeks to raise numerous
challenges to the Second Amended Judgment.
the Antiterrorism and Effective Death Penalty Act of 1996, a
federal prisoner must receive certification from the court of
appeals to file a "second or successive" 2255
motion. 28 U.S.C. § 2255(h).
"Second or successive" is a question of law this
court reviews de novo. See United States v. Sellner,
773 F.3d 927, 931 (8th Cir. 2014). A 2255 petition
challenging a new sentence is not successive. See Magwood
v. Patterson, 561 U.S. 320, 339, 341-42 (2010) (If
petitioner is resentenced between first and second 2254
petitions, second petition-raising claims that could have
been raised in a previous petition-is not successive under
2244(b) because it is the "first application challenging
that intervening judgment."); Dyab v. United
States, 855 F.3d 919, 923 (8th Cir. 2017)
("import[ing] Magwood's inquiry about entry
of a new judgment to the 2255 context."). The inquiry is
"whether a district court has entered a new, intervening
judgment." Id. For a 2255 motion, "it is
well established that '[t]he sentence is the
judgment.'" Id., quoting Berman v.
United States, 302 U.S. 211, 212 (1937). If Brown's
Second Amended Judgment is a new sentence, then his petition
is not successive.
Second Amended Judgment is not a new sentence. The judge
orally sentenced him to 480-months' imprisonment on count
6. "The oral pronouncement by the sentencing court is
the judgment of the court." United States v.
Tramp, 30 F.3d 1035, 1037 (8th Cir. 1994). See
also Fed. R. Crim. P. 35(c) ("As
used in this rule, 'sentencing' means the oral
announcement of the sentence."). Though the written
judgment said life on count 6, "when an oral sentence
and the written judgment conflict, the oral sentence
controls." United States v. Mayo, 642 F.3d 628,
633 (8th Cir. 2011). Here, the oral sentence of 480
months' imprisonment controlled. This court's order
directing the district court "to correct its judgment to
reflect that Appellant Charmar Brown's sentence on Count
6 is 480 months" did not change the sentence. Rather,
that order ensured that the written judgment reflected his
sentence of 480 months.
district court noted that the correction was under Criminal
Rule 35(a). That was wrong. Rule 35(a) authorizes a court to
"correct a sentence that resulted from arithmetical,
technical, or other clear error" within "14 days
after sentencing." Fed. R. Crim. P.
35(a). The court here corrected the judgment years
after sentencing. See, e.g., United States v.
Medina-Mora, 796 F.3d 698, 700 (7th Cir. 2015)
("Under Federal Rule of Criminal Procedure 35(a), the
district court lost any power it may have had to correct an
'arithmetical, technical, or other clear error' in
the sentence fourteen days after pronouncing
sentence."); United States v. Winfield, 665
F.3d 107, 114 (4th Cir. 2012) (Rule 35(a) does not authorize
district court to amend sentence four months later).
court may affirm the Second Amended Judgment for any reason
supported by the record. See, e.g., United
States v. Price, 851 F.3d 824, 826 (8th Cir. 2017). The
district court's correction of the written judgment was
authorized by Criminal Rule 36. See Fed. R.
Crim. P. 36 ("[T]he court may at any time
correct a clerical error in a judgment, order, or other part
of the record, or correct an error in the record arising from
oversight or omission.").
of a clerical or typographical error pursuant to Criminal
Rule 36 . . . does not justify disregarding prior § 2255
motions in the 'second or successive' calculus."
Dyab, 855 F.3d at 923. "Fixing typographical
errors and the like does not substantively alter a
prisoner's sentence, so a § 2255 motion filed after
such a correction is still a challenge to the original
judgment." Id., citing Marmolejos v. United
States, 789 F.3d 66, 70-71 (2d Cir. 2015). When this
court directed the district court to correct its judgment, it
was correcting an error in the record. This correction in the