OPINION
This matter is before the Court upon Defendant Wayne Carter’s appeal of the district court’s denial of his Motion to Amend Sentencing pursuant to 18 U.S.C. § 3582. Finding no error, the decision of the lower court is affirmed.
*488 FACTS
Carter was indicted by a federal grand jury sitting in Nashville in December, 2000. Carter was charged with attempted possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841 and 846 and carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Prior to pleading guilty, Carter was advised that his total estimated sentence was 120-131 months. In March of 2001, Carter pleaded guilty to two counts of the Indictment.
Carter’s pre-sentence report recommended a two-level enhancement for his leadership role. Carter was sentenced to 70 months on one count and 60 months on another, to run consecutively. This was within the sentencing range that Carter had been advised to expect. No direct appeal was filed, as his right to appeal had been waived in the plea agreement. Carter filed a motion for relief under 28 U.S.C. § 2255 on July 5, 2002, and it was denied on March 10, 2003. Carter appealed that denial, but we denied jurisdiction in June, 2004, based on a lack of timely filed notice of appeal. Carter then filed a motion for relief from judgment under Fed.R.Civ.P. 60(b) and the motion was construed as a motion to vacate his sentence pursuant to § 2255.
Carter next filed a Motion for Relief pursuant to 18 U.S.C. § 3582(c)(2), requesting modification of his sentence on March 4, 2005. The district court denied the motion on April 5, 2005. Carter filed a motion for reconsideration, which the district court denied. Carter then filed his Notice of Appeal on April 27, 2005.
JURISDICTION
This is an appeal from the judgment of the District Court after denial of a motion filed pursuant to 18 U.S.C § 3582(c)(2). Jurisdiction is invoked under 28 U.S.C. § 1291.
STANDARD OF REVIEW
This appeal presents a question of law, and is therefore reviewed de novo.
See United States v. Tocco,
DISCUSSION
Carter appeals the denial of his motion to amend his sentence pursuant to 18 U.S.C. § 3582. 18 U.S.C. § 3582(c)(2) provides a mechanism for the modification of a sentence if the Sentencing Commission changes the relevant sentencing range after a defendant is sentenced. Section 3582 provides:
The court may not modify a term of imprisonment once it has been imposed except that — ... in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c). Carter’s § 3582 motion asserts that
United States v. Booker,
On appeal, the Government argues that the § 3582 motion should be construed as a second or successive § 2255 motion subject to additional screening requirements. *489 Carter has previously filed both a motion to vacate pursuant to § 2255 and a Rule 60(b) Motion for Relief from judgment. Whether a § 3582 motion must be considered as a second or successive § 2255 motion is a matter of first impression in this Circuit. Before addressing the merits, we will consider whether § 3582 motions should be construed as second or successive § 2255 motions, as the government urges.
1. Gonzalez precedent
In 2005, the Supreme Court held that motions for relief from judgment under Fed. R. Civ. P. 60(b) should be construed as second or successive habeas motions in some eases.
See Gonzalez v. Crosby,
2. The 60(b) and § 3582 Connection
The Supreme Court in
Gonzalez
specifically stated that it was construing the application of Rule 60(b) only in habeas cases of state prisoners.
Gonzalez,
There are multiple similarities between Rule 60(b) motions and § 3582 motions. Both provide for relief only in narrow, limited circumstances and are sometimes used as final attempts to seek relief. Rule 60(b) provides relief from judgment on the basis of such issues as mistake, newly discovered evidence, fraud, or voidness. Section 3582(c)(2) provides relief when a defendant is “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Section 3582 has a more narrow application than Rule 60(b), but both potentially could be used by petitioners to circumvent the screening requirements of § 2255 and attack the merits of their convictions and sentences. Thus, in this situation, the similarities between the two motions for relief prevail.
*490
As was explained in
Gonzalez,
when a 60(b) motion attacks the petitioner’s conviction or sentence, or the federal court’s previous resolution of a claim
on the merits,
the 60(b) motion should be construed as a successive § 2255 motion. This Court incorporated and expanded that holding in
Nailor,
We are not alone in concluding that certain motions titled as § 3582 motions should be treated as § 2255 motions in some circumstances. Several circuit courts have chosen to do so, though none has pronounced a generalized rule relating to the interpretation of § 3582 motions as § 2255 motions.
See United States v. Maxwell,
*3 (S.D.Tex.2006);
Gibson v. United States,
3. Carter’s § 3582 motion
Carter argues that
U.S. v. Booker,
Carter posited his request as a motion for modification under 18 U.S.C. § 3582(c)(2). Carter’s motion can reasonably be interpreted not to attack the merits of his conviction, but instead to argue that there has been a change in the relevant guidelines as a result of Booker. Although there has been no such change, the type of relief he requests is the type which § 3582 may provide, in appropriate situations. While Carter’s motion fails, nonetheless under this interpretation it is correctly treated as a § 3582 motion.
Section 3582 provides that the court may modify a sentence when the Sentencing Commission has lowered the relevant sentencing range. 18 U.S.C. § 3582(c). Thus, relief is available only if the Sentencing Commission changes a sentencing range, and
Booker
cannot be construed as a change to a sentencing range by the Sentencing Commission.
See Cortorreal v. United States,
Carter’s motion also can be interpreted as presenting a new attack on the merits of the district court’s original sentencing determination, arguing that
Booker
should be applied retroactively regardless of whether it worked a change to his sentencing range for purposes of § 3582(c)(2). As explained above, such an attack is beyond the scope of a proper § 3582 motion and must be construed as a § 2255 motion, regardless of its title as a § 3582 motion. Because Carter previously has filed a § 2255 motion, this numerically second § 2255 motion is cognizable by the district court only if it does not constitute a second or successive petition, as that phrase has been interpreted,
see In re Bowen,
In this case, however, even if we were to review the merits of Carter’s arguments, we would affirm the district court’s decision. In.
United States v. Booker,
the Supreme Court held that the United States Sentencing guidelines are merely advisory, rather than binding.
United States v. Booker,
The rule in
Booker
is not retroactively applicable to cases on collateral review.
Humphress v. United States,
Carter mistakenly believes that the ex post facto clause is relevant to his case. The, ex post facto clause bars the application of greater criminal penalties than those which existed at the time a crime occurred.
Johnson v. United States,
CONCLUSION
For the reasons set forth above, we AFFIRM the District Court’s judgment.