Eleventh Circuit Court of Appeals - Published Opinions

Friday, May 28, 2021

Cody: No COA Required for Choice of Sentencing Remedy Following Successful 2255 Motion

In United States v. Cody, No. 19-11915 (May 28, 2021) (William Pryor, Luck, and Marks (MD AL)), the Court held that a certificate of appelability is required when appealing from a district court’s decision to simply remove a now-illegal ACCA enhancement without re-sentencing the defendant on other counts.  The Court explained that such a decision about the choice of remedy was part of the 2255 proceeding, not the criminal proceeding.  And because the defendant lacked a COA, the Eleventh Circuit lacked jurisdiction.  In so holding, it appeared to acknowledge that the Fourth Circuit has reached a contrary holding.