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Hodge v. United States

April 27, 2010

RUSSELL JAMES HODGE, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE.



Appeal from the United States District Court for the Northern District of Iowa.

The opinion of the court was delivered by: Hansen, Circuit Judge.

Submitted: April 14, 2010

Before BYE, JOHN R. GIBSON, and HANSEN, Circuit Judges.

Following our prior two opinions remanding this case for resentencing, see United States v. Hodge, 142 Fed. Appx. 268 (8th Cir. 2005) (Hodge I) (unpublished) (per curiam); United States v. Hodge, 469 F.3d 749 (8th Cir. 2006) (Hodge II), the district court*fn1 resentenced Russell James Hodge to 163 months' imprisonment, a sentence below the advisory sentencing guidelines range. After the judgment became final and the United States Supreme Court filed Gall v. United States, 552 U.S. 38 (2007), Hodge filed a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. The district court denied his § 2255 motion as time-barred and held that Gall should not be applied retroactively, but it granted a certificate of appealability on the question of whether Gall should be applied retroactively to Hodge. Hodge appeals, arguing that Gall should be applied retroactively. For the following reasons, we affirm.

I.

On June 8, 2004, Hodge pled guilty to possession of a firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2); conspiring to manufacture, distribute, and possess with the intent to distribute 500 grams or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and conspiring to distribute pseudoephedrine knowing it would be used to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(c)(2) and 846. At sentencing, the district court granted a two-level reduction for Hodge's role in the offense and a three-level reduction for acceptance of responsibility. With a criminal history category IV, Hodge faced a sentencing range of 84 to 105 months' imprisonment and a 120-month mandatory minimum. The district court imposed a sentence of 84 months' imprisonment. The Government appealed the district court's grant of a reduction for a minor role in the offense. We held that the district court clearly erred in finding that he was a minor participant in the offense and remanded for resentencing in accordance with the advisory sentencing guidelines. Hodge I, 142 Fed. Appx. at 269.

At the second sentencing hearing, the district court found that Hodge had an offense level of 37 and a criminal history category of IV, resulting in an advisory guidelines range of 292 to 365 months' imprisonment. The district court granted a variance from the advisory guidelines range and imposed a below-guidelines range sentence of 120 months' imprisonment, which was the statutory mandatory minimum.

Upon appeal, we concluded that the below-guidelines sentence was unreasonable and remanded for resentencing. Hodge II, 469 F.3d at 758.

At the third sentencing hearing on June 4, 2007, the district court sentenced Hodge to 163 months' imprisonment, still below the advisory guidelines range of 292 to 365 months' imprisonment. The judgment was filed on June 7, 2007, and neither party filed an appeal before the judgment became final.

In December 2007, the United States Supreme Court released Gall, which addressed the standard of review a court of appeals must apply when reviewing the sentence a district court imposed. In August 2008, following Gall and more than a year after his sentence became final, Hodge filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. A one-year statute of limitations generally applies to § 2255 motions. The district court held that if Gall was to be applied retroactively, the statute of limitations would not apply and Hodge's motion would be timely filed. However, it determined that Gall did not apply retroactively and, therefore, his motion was time-barred. Nevertheless, because the district court explained that "'reasonable jurists could debate whether . . . the petition should have been resolved in a different manner,'" (Add. at 15 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000))), it granted a certificate of appealability to resolve the question of whether Gall should be applied retroactively to permit resentencing for Hodge.

Hodge now appeals the issue of whether Gall should apply retroactively, pursuant to the certificate of appealability.

II.

We review the denial of a § 2255 motion de novo. Never Misses A Shot v. United States, 413 F.3d 781, 783 (8th Cir. 2005) (per curiam).

Hodge contends that Gall should be applied retroactively to cases that became final prior to its filing. We previously addressed the issue of a Supreme Court opinion's retroactivity in Never Misses A Shot. "When a Supreme Court decision results in a 'new rule' of criminal procedure, that rule applies to all criminal cases still pending on direct review, but, as to convictions that are already final, that rule applies only in limited circumstances." Id., 413 F.3d at 783 (citing Schriro v. Summerlin, 542 U.S. 348 (2004). "New substantive rules-which narrow the scope of a criminal statute or which place particular conduct or persons covered by the statute beyond the State's power to punish-generally apply retroactively." Id. "New procedural rules generally do not apply retroactively unless the rule is of 'watershed' magnitude implicating 'the fundamental fairness and accuracy of the criminal proceeding,' or unless the rule prevents the lawmaking authority from criminalizing certain kinds of conduct." Id. (citing Schriro, 542 U.S. at 352). See also Teague v. Lane, 489 U.S. 288, 310-311 (1989) (holding that new ...


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