Anthony Hill v. Ricardo Rios

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Anthony HILL, Petitioner-Appellant, v. Ricardo RIOS, Respondent-Appellee.

No. 12-3168.

United States Court of Appeals, Seventh Circuit.

Submitted June 17, 2013. Decided July 3, 2013.

Rehearing Denied Aug. 19, 2013.

722 F.3d 937

priate in the context of each case.”

United States v. Busara, 551 F.3d 669, 674 (7th Cir.2008). Because the district court adequately considered the statutory sentencing factors and provided a comprehensive explanation for the sentence imposed, it committed no procedural error. See

United States v. Ashqar, 582 F.3d 819, 826-27 (7th Cir.2009).

In addition to contesting the procedural aspects of his sentencing, Vaughn argues that his sentence is substantively unreasonable in light of the lesser, seventy-two-month sentence Lockhart received for his role in the conspiracy. True, § 3553(a)(6) requires judges to consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. § 3553(a)(6). But the fact that the district court imposed a lesser sentence on Vaughn‘s co-defendant does not mean that Vaughn‘s sentence is therefore unreasonable.

United States v. Hill, 683 F.3d 867, 871 (7th Cir. 2012). Vaughn‘s criminal history points put him in criminal history category V, whereas Lockhart fell within category II. Moreover, Lockhart‘s need for rehabilitation and deterrence was much less pronounced than Vaughn‘s. And although Vaughn suggests that he played a lesser role in the conspiracy, the court properly imposed a two-level enhancement for his role as a leader, an enhancement that was not applicable to Lockhart. These distinctions resulted in considerably different guidelines ranges, and the sentencing disparity between them was warranted. Accordingly, we conclude that Vaughn has not overcome the presumption of reasonableness attached to his within-guidelines sentence.

III. Conclusion

For these reasons, we AFFIRM Lockhart‘s conviction, AFFIRM Vaughn‘s conviction, and AFFIRM Vaughn‘s 240-month sentence.

Brian Charles Lea (submitted), Attorney, Jones Day, Atlanta, GA, Brian J. Murray, Attorney, Jones Day, Chicago, IL, Anthony Hill, Federal Correctional Institution, Pekin, IL, for Petitioner-Appellant.

Joseph H. Hartzler (submitted), Attorney, Office of the United States Attorney, Springfield, IL, Greggory R. Walters, Attorney, Office of the United States Attorney, Peoria, IL, for Respondent-Appellee.

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

EASTERBROOK, Chief Judge.

In 2010 Anthony Hill filed a petition under 28 U.S.C. § 2241, contending that

Begay v. United States, 553 U.S. 137 (2008), showed that the district court had erred in deeming him a career offender when calculating his Guideline sentence in 1999. Although Hill relied on

Narvaez v. United States, 641 F.3d 877, amended on rehearing, 674 F.3d 621 (7th Cir.2011), we held that 28 U.S.C. § 2255(e) forecloses resort to § 2241, because Hill could have used § 2255 to present the same argument, if he had acted promptly after Begay, as Narvaez himself had done. See

Hill v. Rios, No. 11-2557 (7th Cir. Dec. 2, 2011) (nonprecedential disposition).

Hill did not file a petition for rehearing or ask the Supreme Court to review our decision. Instead he filed in the district court a motion for relief under Fed. R.Civ.P. 60(b), contending that this court erred in believing that he could have used § 2255 to obtain relief. Our error, according to Hill, is that we did not appreciate that he had earlier filed and lost a motion under § 2255. That statute does not permit a second motion to be based on a decision such as Begay, which interprets a statute rather than the Constitution. See

Gray-Bey v. United States, 209 F.3d 986 (7th Cir.2000). The district court denied this motion, concluding that failure to apprise the court of appeals of all important facts is not “excusable neglect” that permits reopening of a judgment in the district court.

After the district court denied the Rule 60(b) motion, this court held in

Brown v. Caraway, 719 F.3d 583, No. 12-1439 (7th Cir. May 10, 2013), that § 2241 may be used to seek relief under the theory of Narvaez when § 2255 does not allow a second or successive collateral attack. The difference between Brown and Hill‘s situation, however, is that Brown was decided on direct appeal from the district court‘s order denying relief under § 2241, while Hill wants to use Rule 60(b) to obtain relief in light of arguments that could have been made on the initial appeal.

Gonzalez v. Crosby, 545 U.S. 524, 536-38 (2005), holds that Rule 60(b) cannot be used to reopen the judgment in a civil case just because later authority shows that the judgment may have been incorrect. The Supreme Court explained in Gonzalez and its predecessors, such as

Ackermann v. United States, 340 U.S. 193 (1950), that relief under Rule 60(b) is proper only under extraordinary circumstances—and it held in both Gonzalez and Ackermann that legal developments after a judgment becomes final do not qualify as extraordinary. Likewise a litigant who bypasses arguments on appeal cannot depict his own omission as an “extraordinary” event that justifies post-judgment relief.

Hill could have told us during his appeal in 2011 that he had already filed a § 2255 petition and could have made in 2011 the same arguments that prevailed in Brown. He also could have provided that information and raised the arguments in a petition for rehearing. He took neither step. There are time limits for seeking rehearing or certiorari. Those time limits would be vitiated if all a litigant had to do was make a motion in the district court under Rule 60(b) and then raise on appeal contentions that could have been presented years earlier.

Finality is an important consideration, especially in the law of collateral review. See, e.g.,

Harrington v. Richter, 562 U.S. 86 (2011);

Premo v. Moore, 562 U.S. 115 (2011). Hill believes that the district judge misunderstood circumstances that could have influenced his sentence in 1999. He does not contend that he is in prison for an act that the law does not make criminal or that his sentence exceeds the statutory maximum. Indeed, his sentence of 284 months is within the range (235 to 293 months) that would have prevailed had the district judge not applied a career-offender enhancement in 1999. No rule of law either before or after Begay prevented the district court from imposing the sentence that Hill is now serving. He cannot extend the process of contesting his sentence by filing post-judgment motions in the district court.

Gonzalez emphasized that appellate review of a decision not to reopen a judgment under Rule 60(b) is deferential.

545 U.S. at 540. See also, e.g.,

Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826 (7th Cir.1985). The district judge did not abuse his discretion in denying Hill‘s motion for post-judgment relief.

AFFIRMED.

Case Details

Case Name: Anthony Hill v. Ricardo Rios

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 3, 2013

Citation: 722 F.3d 937

Docket Number: 12-3168

Court Abbreviation: 7th Cir.