United States v. Sherman Moore ( 2011 )

NONPRECEDENTIAL DISPOSITION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 March 23, 2011*
Decided March 25, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 10-2878, 10-3394 & 11-1076 Appeals from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v.
No. 95 CR 509–2
SHERMAN MOORE, David H. Coar, Judge.
Defendant-Appellant.
Order
Sherman Moore was convicted in 1996 of drug offenses and sentenced to three con-
current terms. Two of the three are life imprisonment; the other is 20 years. We affirmed
his conviction and sentences, 223 F.3d 554 (7th Cir. 2000), and rejected his collateral at-
tack, 188 Fed. App’x 494 (7th Cir. 2006) (nonprecedential disposition). In 2008, after the
Sentencing Commission lowered the Guideline ranges for crack-cocaine crimes, and
made that change retroactive, Moore asked the district court to reduce his sentences.
The judge denied that motion, and we affirmed. No. 10-1977 (7th Cir. Dec. 22, 2010)
(nonprecedential disposition).
* 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).
Nos. 10-2878 et al. Page 2
Moore has continued to file motions in the district court asking the judge to correct
his presentence report—a document that was written in 1996 and should have been cor-
rected then (if it contains errors). Moore apparently thinks that, because he received a
copy of this report in connection with his sentence-reduction motion in 2008, he is enti-
tled to another opportunity to complain about its contents. This is not so. A procedure
under 18 U.S.C. §3582(c)(2) is not a full resentencing, see Dillon v. United States, 130 S.
Ct. 2683, 2690–92 (2010), so Fed. R. Crim. P. 32(i)(3)(B) does not apply. A district judge is
entitled to take the original PSR as given. (To the extent Moore may believe that a new
PSR has been prepared, he is mistaken—as the district judge has told him repeatedly.)
After the district judge denied his motion to correct the 1996 PSR, Moore filed a no-
tice of appeal. This notice, No. 10-2878, is late. The deadline for a notice of appeal in a
criminal case is not jurisdictional, see United States v. Neff, 598 F.3d 320, 323 (7th Cir.
2010), but it remains a mandatory case-processing rule. Cf. Eberhart v. United States, 546
U.S. 12 (2005). The United States has invoked the benefits of this deadline and is entitled
to have it enforced.
Recognizing that appeal No. 10-2878 is defective, Moore asked the district judge to
extend the time under Fed. R. App. P. 4(b)(4). The district judge denied this motion, and
Moore filed an appeal, which has been docketed as No. 10-3394, from that decision. The
Criminal Code authorizes appeals from final sentences but not from procedural orders.
18 U.S.C. §3742(a). See also 28 U.S.C. §1291. The right way to contest an order denying a
motion under Rule 4(b)(4) is to present an argument in the initial appeal. The district
judge did not abuse his discretion in denying the motion for an extension under Rule
4(b)(4). Thus appeal No. 10-2878 is dismissed as untimely, and appeal No. 10-3394 is
dismissed as unauthorized by statute (because it is not an appeal from a final decision).
While appeal No. 10-2878 was pending, Moore filed in the district court still another
motion to correct the PSR. The judge denied this on the same grounds as before: That
the PSR written in 1996 is no longer subject to revision (the deadline for objections to a
report is 14 days, see Rule 32(f)(1)), and that Moore is mistaken in thinking that a new
PSR was prepared in 2008. What is more, if Moore were correct in his belief, the time to
raise the issue was on appeal from the district court’s order denying his motion for a
lower sentence. That time has passed and cannot be reopened by sequential motions.
Moore then filed another appeal, which has been docketed as No. 11-1076. Because ap-
peal No. 10-2878 was pending when the district judge made this decision, the court
lacked jurisdiction to proceed. A district judge cannot visit (or revisit) an issue that is
before the court of appeals. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58
(1982); United States v. McHugh, 528 F.3d 538 (7th Cir. 2008). In No. 11-1076, therefore,
the decision of the district court is vacated as unauthorized.
Moore should not interpret this as an invitation to file another, similar request in the
district court. Successive applications under §3582(c)(2) are not allowed, see United
States v. Redd, 630 F.3d 649 (7th Cir. 2011), and successive motions concerning the PSR
would be frivolous and lead to an award of sanctions.
Nos. 10-2878 et al. Page 3
Appeals No. 10-2878 and 10-3394 are dismissed, and on Appeal No. 11-1076 the dis-
trict court’s decision is vacated.