UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM R. HIBLE, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MATTHEW A. TURNER, Defendant-Appellant.
Nos. 20-1824 & 20-2421
United States Court of Appeals For the Seventh Circuit
September 14, 2021
Appeal from the United States District Court for the Central District of Illinois. No. 10-cr-20015-JES-DGB – James E. Shadid, Judge. No. 07-40084 Michael M. Mihm, Judge. SUBMITTED SEPTEMBER 2, 2021
Before EASTERBROOK, WOOD, and BRENNAN, Circuit Judges.
This question has arisen before but was resolved in an order. The majority in United States v. Rutherford, No. 19-3012 (7th Cir. June 23, 2020) (nonprecedential disposition), concluded that a motion to reconsider suspends the decision‘s finality. Circuit Judge Barrett (as she then was) dissented, concluding that
The Federal Rules of Criminal Procedure lack any parallel to the omnibus motions to reconsider authorized by
In one circumstance, however, legislation limits reconsideration. The
The prosecutor wants us to stop with this observation. Yet our two prisoners are not appealing from the imposition of their sentences. They invoke the First Step Act, which authorizes reduction of a sentence long after the time allowed by Rule 35. Any prisoner serving a sentence for a covered crack-cocaine offense is entitled to ask a judge to treat him as if the
One can reach this conclusion by a different route as well. The prosecutor wants us to treat a decision under the First Step Act as equivalent to original sentencing, which would force all requests for reconsideration into Rules 35 and 36. Yet the Supreme Court held in Dillon v. United States, 560 U.S. 817 (2010), that resolution of a motion under a retroactive guideline is not a form of full sentencing, and as a result the procedures applicable to initial sentences do not govern. We have applied Dillon to rulings on motions for compassionate release, another of the situations in which
We have not found any precedential appellate opinion addressing the effect of motions to reconsider decisions under the First Step Act. But several circuits have held or assumed that motions to reconsider decisions about the effect of retroactive guidelines or compassionate release defer the time for appeal. See United States v. Ridl, 26 F.3d 73, 74 (8th Cir. 1994); United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012); United States v. McCoy, 981 F.3d 271, 277 (4th Cir. 2020); contra, United States v. Brown, 817 F.3d 486, 489 (6th Cir. 2016). Brown did not rely on Rule 4(b)(5) but instead pointed to Rule 4(b)(3), which lists motions that extend the time for appeal. Brown assumed that no other motions in criminal cases can do so. It did not mention Healy, Dieter, or Ibarra, which the parties apparently did not call to
We recognize that the First Step Act forbids motions for relief “if a previous motion made under this section to reduce the sentence was ... denied after a complete review of the motion on the merits.” Section 404(c) of the Act,
The ban on successive motions under the First Step Act is parallel to the limit on successive motions for collateral review under
Section 404(c) says that the prisoner must be satisfied with one “complete review of the motion on the merits.” Under the approach of Banister, a motion for reconsideration is part of that “complete review ... on the merits” rather than a second or successive motion. And from this it follows, as Banister also holds, that the motion suspends the finality of the decision until the district court has acted. See also United States v. Beard, 745 F.3d 288, 291 (7th Cir. 2014) (same approach for motions based on retroactive changes to the Sentencing Guidelines).
This brings us to the merits. William Hible pleaded guilty to distributing more than five grams of crack cocaine and was sentenced to 240 months’ imprisonment. His presentence report concluded that his relevant conduct included the distribution of more than 250 grams of crack, 50 kilograms of powder cocaine, and 2,000 kilograms of marijuana. A district judge cut the sentence to 225 months under the First Step Act but declined to reduce it further, remarking that Hible‘s substantial dealing in powder cocaine is outside the First Step Act‘s scope. Hible contends that the judge should not have relied on the presentence report, because before imposing the original sentence the court did not resolve a contest to the report‘s accuracy. But there‘s a reason: Hible and the prosecutor made a bargain under which, in exchange for receiving a lower criminal-history category, Hible gave up his challenge to the report‘s conclusions. The district judge did not abuse his discretion by giving weight to the report when, years later, Hible sought a sentence below the one he had bargained for. See United States v. Sutton, 962 F.3d 979, 986–87 (7th Cir. 2020).
Nor did the judge err in considering Hible‘s prior felony conviction. If he had received an original sentence in 2020, the conviction would not have counted because of changes that the First Step Act makes to recidivist sentencing under
Hible‘s remaining arguments have been considered but do not require analysis.
Matthew Turner, the other appellant, received a life sentence for conspiring to distribute both crack and powder cocaine. A life sentence was mandatory given the quantities involved and Turner‘s prior drug convictions.
United States v. Hudson, 967 F.3d 605, 610 (7th Cir. 2020), holds that, when a defendant has been sentenced for two crimes, one covered by the First Step Act and the other not, a district judge has discretion to revise the entire sentencing package. That does not help Turner, however, because Hudson concerns the exercise of discretion. It does not change any statutory penalty. Turner‘s statutory minimum penalty was and remains life in prison. The President‘s pardon power permits him to reduce such a sentence—and the President has exercised that authority in Turner‘s favor—but a district judge lacks equivalent power. Unless Turner receives further clemency, his sentence cannot be less than 30 years.
AFFIRMED