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. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  2. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  3. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  4. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  5. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well