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7th Circuit first to decide on resentencing, procedural rule issue

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The 7th Circuit Court of Appeals today ruled on an issue that hasn’t been addressed by any of its counterparts nationwide, finding that sentencing guidelines revised three years ago still only give District judges one chance to modify penalties based on a federal criminal rule of procedure.

In its decision today in U.S.A. v. Timothy Redd, No. 09-3799, the appellate panel affirmed a ruling by U.S. Judge Theresa L. Springmann in the Northern District of Indiana, Fort Wayne Division.

Redd was convicted in 2005 of distributing crack cocaine and sentenced to 405 months in prison. After an amendment to the U.S. Sentencing Guidelines in 2008 retroactively lowered the sentencing range for those offenses, Redd received a modified 327 months.

Though he didn’t appeal, Redd waited 10 months to file what he described as a motion asking for the judge to reconsider the modification. Since that document didn’t meet the federal rules for being a motion for reconsideration, it, in effect, has to be viewed as a new motion for a lower sentence based on the Sentencing Guideline changes known as Amendment 712.

Since a reduction had already been ordered once under 18 U.S.C. §3582(c)(2), the 7th Circuit held that Judge Springmann can’t again modify the sentence under that statutory requirement because this isn’t a full resentencing. Instead, Redd’s request must be governed by Federal Rule of Criminal Procedure 35 that allows for two exceptions in sentence reducing based on either a technical or clear error within 14 days or by prosecutor’s motion.

“Redd treats §3582(c)(2) as if it countermanded the basic determinate-sentence system and bestowed on district judges a continuing power to adjust sentences – a power that would last indefinitely, unlike the older system limiting that power to 120 days after the final appellate decision,” Chief Judge Frank Easterbrook wrote. “Neither the text of §3582(c)(2) nor the language of Amendment 712 suggests that prisoners are entitled to more than one opportunity to request a lower sentence, for any given change in the Guideline range. Once the district judge makes a decision, Rule 35 applies and curtails any further power of revisions, unless the Commission again changes the Guidelines and makes that change, too, retroactive.”

Only the 11th Circuit has previously addressed this general subject in a published opinion, holding that the doctrine of law in the case usually forecloses successive requests for lower sentences. But that ruling in 1997 was before these newest sentencing changes and didn’t address Rule 35, making this decision by the 7th Circuit the first to address the specific issue.

“We think it is best to stick with a statute rather than apply a common-law doctrine such as law of the case,” Judge Easterbrook wrote, with Judges Richard Posner and Diane Wood joining.

The opinion lets Redd’s time for reconsideration or appeal of Judge Springmann’s resentencing expire without action, and says that he can’t use a new §3582(c)(2) motion to obtain a fresh decision or take what amounts to a belated appeal of the original decision.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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