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.
