United States v. William Hible ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1824
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM R. HIBLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 10-cr-20015-JES-DGB — James E. Shadid, Judge.
____________________
No. 20-2421
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATTHEW A. TURNER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-40084 — Michael M. Mihm, Judge.
____________________
2 Nos. 20-1824 & 20-2421
SUBMITTED SEPTEMBER 2, 2021 — DECIDED SEPTEMBER 14, 2021
____________________
Before EASTERBROOK, WOOD, and BRENNAN, Circuit Judges.
EASTERBROOK, Circuit Judge. We have consolidated two ap-
peals that present a common question: whether a motion to
reconsider a decision under the First Step Act of 2018, Pub. L.
115-391, 132 Stat. 5194, suspends the decision’s finality and
thus extends the time for appeal. In each case the prisoner
seeking a shorter sentence filed, within the time allowed for
appeal, a motion asking the district judge to reconsider an ad-
verse decision. In each case the judge denied that motion, and
the prisoner appealed. Each notice of appeal was filed within
14 days of the decision on the motion to reconsider but more
than 14 days after the original decision. The United States has
asked us to dismiss both appeals, contending that a motion to
reconsider does not affect the time for appeal.
This question has arisen before but was resolved in an or-
der. The majority in United States v. Rutherford, No. 19-3012
(7th Cir. June 23, 2020) (nonprecedential disposition), con-
cluded that a motion to reconsider suspends the decision’s fi-
nality. Circuit Judge Barreb (as she then was) dissented, con-
cluding that Fed. R. Crim. P. 35 provides the only means to
review a sentencing decision. As Fed. R. App. P. 4(b)(5) spec-
ifies that a motion under Rule 35 does not affect the time for
appeal, an appeal following the denial of reconsideration of-
ten will be untimely. The United States asks us to follow Jus-
tice Barreb’s approach. But we think that the majority got this
right and publish this opinion to seble the law of the circuit.
The Federal Rules of Criminal Procedure lack any parallel
to the omnibus motions to reconsider authorized by Fed. R.
Nos. 20-1824 & 20-2421 3
Civ. P. 59. Still, the Supreme Court has held repeatedly that
motions to reconsider in criminal cases extend the time for ap-
peal. See, e.g., United States v. Healy, 376 U.S. 75 (1964); United
States v. Dieter, 429 U.S. 6 (1976); United States v. Ibarra, 502
U.S. 1 (1991). We recapped the effects of those cases in United
States v. Rollins, 607 F.3d 500 (7th Cir. 2010), concluding that
they stand for a rule that all motions to reconsider appealable
orders in criminal cases extend the time for appeal until they
have been resolved by the district court.
In one circumstance, however, legislation limits reconsid-
eration. The Sentencing Reform Act of 1984 moved toward a
system of determinate sentences by foreclosing many oppor-
tunities for revision after a sentence has been imposed. Once
a district judge has sentenced a defendant, the judge may
“modify a term of imprisonment” only to the extent allowed
by retroactive legislation, retroactive changes in the Sentenc-
ing Guidelines, a motion for compassionate release, or motion
under Criminal Rule 35 or 36. See 18 U.S.C. §3582(c)(1)(B). Im-
mediately after sentencing, only Rules 35 and 36 offer any
prospect of modification by the district judge. Rule 36 is lim-
ited to the correction of clerical errors and is irrelevant in most
situations, while modification under Rule 35 is subject to strict
deadlines—and a motion under Rule 35 does not affect the
time for appeal. This is why we held in United States v. Town-
send, 762 F.3d 641 (7th Cir. 2014), that a motion for reconsid-
eration after sentencing does not add time for appeal. Such a
motion can’t rest on anything other than Rule 35, and Rule
4(b)(5) does the rest of the work. Common-law doctrines such
as the one in Healy and its successors do not survive rules
adopted under the Rules Enabling Act.
4 Nos. 20-1824 & 20-2421
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 author-
izes reduction of a sentence long after the time allowed by Rule
35. Any prisoner serving a sentence for a covered crack-co-
caine offense is entitled to ask a judge to treat him as if the
Fair Sentencing Act of 2010 had been in force on the date of
his original sentence. Terry v. United States, 141 S. Ct. 1858(2021), describes how this works. The First Step Act’s author-
ization to reduce a prisoner’s sentence is external to Rule 35,
so the provision in Rule 4(b)(5) about the effect of motions un-
der Rule 35 does not affect requests to reconsider. Townsend
thus does not require the dismissal of appeals about decisions
under the First Step Act—or, for that maber, other retroactive
statutes or changes to the Sentencing Guidelines.
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 guide-
line is not a form of full sentencing, and as a result the proce-
dures applicable to initial sentences do not govern. We have
applied Dillon to rulings on motions for compassionate re-
lease, another of the situations in which §3582 permits sen-
tence reduction outside the scope of Rule 35. See United States
v. Ugbah, 4 F.4th 595, 598 (7th Cir. 2021). It is hard to see any
reason for treating rulings on retroactive statutes differently
from rulings on retroactive guidelines or motions for compas-
sionate release. None of these involves full sentencing, so re-
quests for reconsideration are not limited by Rule 35, which
Nos. 20-1824 & 20-2421 5
deals only with motions made soon after “the oral announce-
ment of the sentence.”
We have not found any precedential appellate opinion ad-
dressing 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 retro-
active 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 as-
sumed that no other motions in criminal cases can do so. It
did not mention Healy, Dieter, or Ibarra, which the parties ap-
parently did not call to its abention, and which hold that Rule
4(b)(3)’s list of time-extending motions is not exclusive. For
that reason Brown does not persuade us.
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 mo-
tion on the merits.” Section 404(c) of the Act, 132 Stat. 5222. If
a motion to reconsider is treated as a forbidden successive
motion, then it falls outside the norm of Healy and successors
just as motions governed by Rule 35 do.
The ban on successive motions under the First Step Act is
parallel to the limit on successive motions for collateral re-
view under 28 U.S.C. §2255. Some courts of appeals held that
a motion for reconsideration in a §2255 proceeding is in effect
a new collateral aback and therefore does not extend the time
for appeal in the first collateral aback. But Banister v. Davis,
6 Nos. 20-1824 & 20-2421
140 S. Ct. 1698 (2020), rejects that characterization and holds
that a motion for reconsideration is just an ordinary filing de-
signed to lead to the proper outcome in the original collateral
proceeding. The Justices characterized the motion as “a lim-
ited continuation of the original proceeding—indeed, a part
of producing the final judgment granting or denying habeas
relief.” Id. at 1710. The Court’s rationale for rejecting the sec-
ond-or-successive characterization of a motion to reconsider
in Banister means that we should reject the second-or-succes-
sive characterization of a motion under a retroactive statute.
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 re-
port concluded that his relevant conduct included the distri-
bution of more than 250 grams of crack, 50 kilograms of pow-
der 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 sub-
stantial 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
Nos. 20-1824 & 20-2421 7
report’s accuracy. But there’s a reason: Hible and the prose-
cutor 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. SuGon, 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 21
U.S.C. §841. But these changes are not retroactive, and we re-
cently held that district judges need not apply them when
considering motions under retroactive changes to the guide-
lines. See United States v. Fowowe, 1 F.4th 522, 529, 532 (7th Cir.
2021). See also United States v. Thacker, 4 F.4th 569 (7th Cir.
2021) (similar decision concerning motions for compassionate
release). What is true of retroactive changes to the guidelines
and motions for compassionate release is true when a new
statute gives district judges discretion to reduce old sentences.
Hible’s remaining arguments have been considered but do
not require analysis.
Mabhew Turner, the other appellant, received a life sen-
tence for conspiring to distribute both crack and powder co-
caine. A life sentence was mandatory given the quantities in-
volved and Turner’s prior drug convictions. 21 U.S.C.
§841(b)(1)(A)(ii) (powder), (b)(1)(A)(iii) (crack). President
Obama commuted this sentence to 30 years’ imprisonment,
and Turner sought more relief from the judiciary. The district
court denied that request, observing that under the Fair Sen-
tencing Act (retroactively applied through the First Step Act)
8 Nos. 20-1824 & 20-2421
the statutory minimum sentence remains life in prison. Even
if all of the crack Turner distributed were to be disregarded,
the powder alone would require a life sentence.
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 per-
mits 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 clem-
ency, his sentence cannot be less than 30 years.
AFFIRMED