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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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