United States v. Sammy Knox , 427 F. App'x 521 ( 2011 )

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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 2, 2011∗
Decided August 4, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 11-1925 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v. No. 89 CR 908 - 25
Rebecca R. Pallmeyer, Judge.
SAMMY KNOX,
Defendant-Appellant.
Order
Sammy Knox is serving a sentence of life imprisonment for drug crimes. Our
opinion affirming the denial of his petition for relief under 28 U.S.C. §2255 sets out the
history. Knox v. United States, 400 F.3d 519 (7th Cir. 2005).
Five years after that decision, Knox filed in the district court a motion seeking a
lower sentence. He asserted that this motion should be addressed under the version of
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 11-1925 Page 2
Fed. R. Crim. P. 35(a) that applies to crimes before November 1, 1987, when the
Sentencing Reform Act and the Sentencing Guidelines took effect. The current version
of Rule 35(a) permits a district judge to fix technical errors within 14 days of sentencing,
and Knox’s motion was filed long after that. But the older rule lacked a time limit.
The district judge concluded that the current rule applies to Knox, because his
drug dealing continued after November 1, 1987. Knox’s argument to the contrary had
been rejected at his original sentencing and again at his resentencing in 1998, and on
appeal we held that the evidence permitted the district court to conclude that the El
Rukn gang (of which Knox was a leader) distributed drugs after the new law’s effective
date. United States v. Boyd, 208 F.3d 638, 648–49 (7th Cir. 2000), remanded on other
grounds, 531 U.S. 1135 (2001), sentence affirmed again on remand, No. 98-2036 (7th Cir.
Apr. 3, 2011) (non-precedential decision). The pre-1987 rule could not be applied to
Knox without first upsetting the conclusion—on which his sentence depends—that his
criminal activity continued after the transition date. The district court therefore
concluded that this motion, though nominally under old Rule 35(a), was actually a
successive collateral attack, which must be dismissed because it had not been
authorized by this court under the criteria of 28 U.S.C. §§ 2244 and 2255(h). See Melton v.
United States, 359 F.3d 855 (7th Cir. 2004) (holding that a motion seeking the kind of
relief authorized by §2255(a) is one under that statute, no matter what caption the
prisoner puts on the motion).
We agree with the district court that Knox is attempting to wage a collateral
attack through the back door. This means, among other things, that he cannot appeal
without a certificate of appealability. 28 U.S.C. §2253(c). We do not see any substantial
constitutional issue raised by the district court’s decision and accordingly decline to
issue a certificate of appealability. The appeal is dismissed.