In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3799
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T IMOTHY R EDD ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:03-CR-53-TS—Theresa L. Springmann, Judge.
S UBMITTED N OVEMBER 30, 2010—D ECIDED JANUARY 4, 2011
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
E ASTERBROOK, Chief Judge. Timothy Redd was convicted
in 2005 of distributing crack cocaine and was sentenced
to 405 months’ imprisonment. In 2007 the Sentencing
Commission reduced the Guideline ranges for crack
offenses (Amendment 706, effective November 1, 2007).
The next year it made that change retroactive (Amend-
ment 712, effective March 3, 2008). This allowed prisoners
2 No. 09-3799
whose ranges had been affected by the change to seek
lower sentences under 18 U.S.C. §3582(c)(2). See Dillon v.
United States, 130 S. Ct. 2683 (2010). Redd swiftly took
advantage of this opportunity, and the district judge
reduced his sentence to 327 months. Redd did not appeal.
Ten months later, he filed in the district court a docu-
ment styled “Motion for Reconsideration or Alternatively
Renewed Motion for Modification of Sentence.” Redd
contended that the judge had not given him as great a
reduction as the law warranted. The judge denied this
motion, and Redd has appealed.
As a motion for reconsideration, the document that
Redd filed in the district court was ineffectual. Only a
motion filed within the time for appeal acts as a genuine
request for reconsideration. United States v. Healy, 376
U.S. 75, 77–78 (1964). See also United States v. Rollins, 607
F.3d 500, 504 (7th Cir. 2010). Redd had 10 days to
appeal; he took 30 times that long to file his motion.
(An amendment to Fed. R. App. P. 4(b) effective Decem-
ber 1, 2009, increases the time to 14 days; it does not
affect Redd’s situation.) The document therefore was
what the second half of its caption called it: a new
motion for a lower sentence under §3582(c)(2).
Until the Sentencing Reform Act of 1984, district
judges could reduce any sentence within 120 days of the
final appellate decision. See United States v. Addonizio, 442
U.S. 178, 187–88 (1979) (describing the former approach).
The 1984 Act converted the federal system to one of
determinate sentences. District judges lost any continuing
authority over sentences, see 18 U.S.C. §3582(c) (“The
No. 09-3799 3
court may not modify a term of imprisonment once it
has been imposed”); United States v. Smith, 438 F.3d 796
(7th Cir. 2006), subject to two general exceptions stated
in Fed. R. Crim. P. 35, which was amended as part of the
legislation. One exception is the power to fix an arithmeti-
cal, technical, or other clear error within 14 days. See
Rule 35(a) and §3582(c)(1)(B). The second is the power to
reduce a sentence on the prosecutor’s motion, if the
defendant provides substantial assistance after the sen-
tence is imposed. See Rule 35(b) and §3582(c)(1)(A). The
only other exception is §3582(c)(2), which depends on a
decision by the Sentencing Commission to make retro-
active a reduction in a Guideline range—and the district
judge’s authority is limited to implementing the Com-
mission’s changes. A decision under an amended Guide-
line is not a full resentencing. Dillon explains how
this works.
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. 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 revision, unless
the Commission again changes the Guidelines and
makes that change, too, retroactive.
4 No. 09-3799
Only one other circuit has addressed this subject in a
published opinion. It held that the doctrine of law of the
case usually forecloses successive requests for lower
sentences. See United States v. Escobar-Urrego, 110 F.3d
1556, 1560–61 (11th Cir. 1997), relying on Christianson v.
Colt Industries Operating Corp., 486 U.S. 800, 815–18 (1988).
The eleventh circuit did not discuss either Rule 35 or the
norm from §3582(c) that “[t]he court may not modify a
term of imprisonment once it has been imposed”. We
think it best to stick with the statute rather than
apply a common-law doctrine such as law of the case.
Redd let the time for reconsideration or appeal of the
district judge’s resentencing expire without action. He
could not use a new §3582(c)(2) motion to obtain a
fresh decision—or to take what amounts to a belated
appeal of the original decision. The judgment of the
district court denying the successive §3582(c)(2) motion
therefore is
AFFIRMED .
1-4-11