Opinion
No. 13-1903
01-15-2014
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CRAIG KENNEDY, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
PHILIP G. REINHARD, District Judge
Of the Northern District of Illinois, sitting by designation.
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Appeal from the United
States District Court for the
Southern District of Indiana,
Indianapolis Division.
No. 1:92-cr-133-LJM-KPF
Larry J. McKinney, Judge.
Order
Craig Kennedy contends that he is entitled to relief under the version of Fed. R. Crim. P. 35 that applies to persons whose crimes predate November 1, 1987. The district court held that Kennedy is not such a person, because the conspiracy of which he was convicted continued after that date. The district judge is right; offenses that straddle the effective date of the Sentencing Reform Act of 1984 are governed by the new rules. See, e.g., United States v. Fazio, 914 F.2d 950, 958-59 (7th Cir. 1990).
Kennedy would not be entitled to relief even under the former rule, which deals with illegal sentences. Kennedy contends that the Guideline range was miscalculated, but that sort of error (if there was an error, which we do not address) does not make a sentence "illegal." That word refers to a sentence imposed in excess of the statutory maximum, or under the wrong statute, and Kennedy does not contend that either sort of error occurred.
If Kennedy believes that he has grounds for a successive collateral attack (he has filed and lost the one allowed to every defendant), he must make a proper application in the court of appeals for permission to pursue an additional round of collateral review. Creatively captioned motions in the district court do not evade the limits on multiple collateral attacks. See, e.g., Melton v. United States, 359 F.3d 855 (7th Cir. 2004).
AFFIRMED