United States v. Corey Hine

Filing

PER CURIAM OPINION FILED - THE COURT: Kermit E. Bye, Morris S. Arnold and Bobby E. Shepherd (UNPUBLISHED) [4053443] [12-1847]

United States Court of Appeals
For the Eighth Circuit
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No. 12-1847
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United States of America
lllllllllllllllllllll Appellee
v.
Corey Louis Hines
lllllllllllllllllllll Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: July 5, 2013
Filed: July 11, 2013
[Unpublished]
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Before BYE, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Corey Louis Hines appeals following the district court’s1 order dismissing
without prejudice his motion to correct his sentence, purportedly pursuant to Federal
1

The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.

Appellate Case: 12-1847

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Date Filed: 07/11/2013 Entry ID: 4053443

Rule of Criminal Procedure 52(b). Because Mr. Hines’s motion was at least his
second collateral attack on his sentence, and Mr. Hines did not obtain this court’s
authorization before filing the motion, it was the functional equivalent of an
unauthorized successive section 2255 motion, and the district court properly
dismissed it. See United States v. Patton, 309 F.3d 1093, 1094 (8th Cir. 2002)
(prisoners may not bypass authorization requirement by purporting to invoke some
other rule or procedure); see also Burton v. Stewart, 549 U.S. 147, 153 (2007) (absent
prior authorization, district court lacks jurisdiction to entertain successive § 2255
motion and should dismiss it or transfer it to court of appeals).
We note that even if Mr. Hines’s Rule 52(b) motion could be considered on its
merits, Mr. Hines would not be entitled to relief on the claim he advances. Mr. Hines
correctly asserts that the 71-month prison sentences imposed by the district court
upon his convictions for conspiracy to commit Social Security fraud and for three
counts of misuse of a Social Security number exceeded the 60-month statutory
maximum for these offenses. See 18 U.S.C. § 371 and 42 U.S.C. § 408(a)(7)(B). It
is evident, however, that the district court intended to impose a prison sentence at the
top of Mr. Hines’s advisory sentencing range for these convictions--which was 57 to
71 months--and the district court was authorized to do so, to achieve the total
punishment of 71 months. See U.S.S.G. § 5G1.2(d) (if sentence imposed on count
carrying highest statutory maximum is less than total punishment, then sentence
imposed on other counts shall run consecutively, but only to extent necessary to
produce combined sentence equal to total punishment). An illegal sentence alone
does not establish the prejudice necessary for plain error relief. See United States v.
Bossany, 678 F.3d 603, 606 (8th Cir. 2012); United States v. Diaz, 296 F.3d 680,
683-85 (8th Cir.) (en banc) (defendant’s substantial rights not affected by sentences
that exceed maximum authorized by jury findings if district court could have imposed
legal sentences on challenged counts and used consecutive sentences to achieve same
total punishment under U.S.S.G. § 5G1.2(d)), cert. denied, 537 U.S. 940 (2002).

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Accordingly, we affirm the district court’s dismissal.
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Date Filed: 07/11/2013 Entry ID: 4053443