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United States v. Redd

United States Court of Appeals, Seventh Circuit
Jan 4, 2011
630 F.3d 649 (7th Cir. 2011)

Summary

holding that once a district judge makes a decision, Rule 35 of the Federal rules of Criminal Procedure applies and "curtails any further power of revision," unless the Sentencing Commission acts to promulgate an additional retroactive change to the sentencing guidelines

Summary of this case from United States v. Wood

Opinion

No. 09-3799.

Submitted November 30, 2010.

Decided January 4, 2011.

Appeal from the United States District Court for the Northern District of Indiana, Theresa L. Springmann, J.

Dean R. Lanter (submitted), Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Timothy Redd, Federal Correctional Institution, Pekin, IL, pro se.

Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.


Timothy Redd was convicted in 2005 of distributing crack cocaine and was sentenced to 405 months' imprisonment. In 2007 the Sentencing Commission reduced the Guideline ranges for crack offenses (Amendment 706, effective November 1, 2007). The next year it made that change retroactive (Amendment 712, effective March 3, 2008). This allowed prisoners whose ranges had been affected by the change to seek lower sentences under 18 U.S.C. § 3582(c)(2). See Dillon v. United States, ___ U.S. ___, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Redd swiftly took advantage of this opportunity, and the district judge reduced his sentence to 327 months. Redd did not appeal.

Ten months later, he filed in the district court a document styled "Motion for Reconsideration or Alternatively Renewed Motion for Modification of Sentence." Redd contended that the judge had not given him as great a reduction as the law warranted. The judge denied this motion, and Redd has appealed.

As a motion for reconsideration, the document that Redd filed in the district court was ineffectual. Only a motion filed within the time for appeal acts as a genuine request for reconsideration. United States v. Healy, 376 U.S. 75, 77-78, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964). See also United States v. Rollins, 607 F.3d 500, 504 (7th Cir. 2010). Redd had 10 days to appeal; he took 30 times that long to file his motion. (An amendment to Fed.R.App.P. 4(b) effective December 1, 2009, increases the time to 14 days; it does not affect Redd's situation.) The document therefore was what the second half of its caption called it: a new motion for a lower sentence under § 3582(c)(2).

Until the Sentencing Reform Act of 1984, district judges could reduce any sentence within 120 days of the final appellate decision. See United States v. Addonizio, 442 U.S. 178, 187-38, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (describing the former approach). The 1984 Act converted the federal system to one of determinate sentences. District judges lost any continuing authority over sentences, see 18 U.S.C. § 3582(c) ("The court may not modify a term of imprisonment once it has been imposed"); United States v. Smith, 438 F.3d 796 (7th Cir. 2006), subject to two general exceptions stated in Fed.R.Crim.P. 35, which was amended as part of the legislation. One exception is the power to fix an arithmetical, technical, or other clear error within 14 days. See Rule 35(a) and § 3582(c)(1)(B). The second is the power to reduce a sentence on the prosecutor's motion, if the defendant provides substantial assistance after the sentence is imposed. See Rule 35(b) and § 3582(c)(1)(A). The only other exception is § 3582(c)(2), which depends on a decision by the Sentencing Commission to make retroactive a reduction in a Guideline range — and the district judge's authority is limited to implementing the Commission's changes. A decision under an amended Guideline is not a full resentencing. Dillon explains how this works.

Redd treats § 3582(c)(2) as if it countermanded the basic determinate-sentence system and bestowed on district judges a continuing power to adjust sentences — a power that would last indefinitely, unlike the older system limiting that power to 120 days after the final appellate decision. Neither the text of § 3582(c)(2) nor the language of Amendment 712 suggests that prisoners are entitled to more than one opportunity to request a lower sentence, for any given change in the Guideline range. Once the district judge makes a decision, Rule 35 applies and curtails any further power of revision, unless the Commission again changes the Guidelines and makes that change, too, retroactive.

Only one other circuit has addressed this subject in a published opinion. It held that the doctrine of law of the case usually forecloses successive requests for lower sentences. See United States v. Escobar-Urrego, 110 F.3d 1556, 1560-61 (11th Cir. 1997), relying on Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 815-18, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). The eleventh circuit did not discuss either Rule 35 or the norm from § 3582(c) that "[t]he court may not modify a term of imprisonment once it has been imposed". We think it best to stick with the statute rather than apply a commonlaw doctrine such as law of the case.

Redd let the time for reconsideration or appeal of the district judge's resentencing expire without action. He could not use a new § 3582(c)(2) motion to obtain a fresh decision — or to take what amounts to a belated appeal of the original decision. The judgment of the district court denying the successive § 3582(c)(2) motion therefore is

AFFIRMED.


Summaries of

United States v. Redd

United States Court of Appeals, Seventh Circuit
Jan 4, 2011
630 F.3d 649 (7th Cir. 2011)

holding that once a district judge makes a decision, Rule 35 of the Federal rules of Criminal Procedure applies and "curtails any further power of revision," unless the Sentencing Commission acts to promulgate an additional retroactive change to the sentencing guidelines

Summary of this case from United States v. Wood

finding motion for reconsideration of sentence “ineffectual” as a common-law motion because it was not timely

Summary of this case from United States v. Townsend

finding motion for reconsideration of sentence "ineffectual" as a common-law motion because it was not timely

Summary of this case from United States v. Townsend

applying the 14–day rule to a motion to reconsider a ruling under § 3582(c)

Summary of this case from United States v. Beard

In Redd we explained that when a defendant waits beyond the 14-day window to appeal before seeking reconsideration of a § 3582(c)(2) ruling, the defendant's request must be treated as a new motion.

Summary of this case from United States v. Black

applying the 14-day rule to a motion to reconsider a ruling under § 3582(c)

Summary of this case from United States v. Council

referencing United States v. Healy, 376 U.S. 75, 77-78

Summary of this case from United States v. Jent

In Redd, the defendant filed a "Motion for Reconsideration or Alternatively Renewed Motion for Modification of Sentence" after being granted a § 3582(c)(2) sentence reduction.

Summary of this case from United States v. Dies

stating that a defendant is not "entitled to more than one opportunity to request a lower sentence, for any given change in the Guideline range."

Summary of this case from United States v. Webb

suggesting that the 14-day period applicable to appeals of criminal judgments would apply to a motion to reconsider a ruling under § 3582(c)

Summary of this case from United States v. Barnes

In United States v. Redd, 630 F.3d 649 (7th Cir. 2010), and United States v. Goodwyn, 596 F.3d 233 (4th Cir. 2010), however, the defendants had already received one sentence reduction and were seeking a second.

Summary of this case from United States v. Kennedy

indicating that § 3582(c) does not permit "more than one opportunity to request a lower sentence, for any given change in the Guideline range"

Summary of this case from Smith v. United States

applying Rule 4(b) to a motion to reconsider the denial of a motion to reduce sentence pursuant to Section 3582(c)

Summary of this case from United States v. Webster
Case details for

United States v. Redd

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Timothy REDD…

Court:United States Court of Appeals, Seventh Circuit

Date published: Jan 4, 2011

Citations

630 F.3d 649 (7th Cir. 2011)

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