NONPRECEDENTIAL DISPOSITION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 November 24, 2010
Decided January 5, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
JOHN L. COFFEY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 10‐2838
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:87‐CR‐40070‐JPG‐4
EUGENE A. FISCHER, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
In 1988, Eugene A. Fischer was convicted of two offenses: (1) engaging in a
continuing criminal enterprise (CCE) involving the importation of a massive amount of
marijuana into the United States and (2) conspiring to distribute that marijuana. After the
Supreme Court issued its decision in Rutledge v. United States, 517 U.S. 292 (1996), the
district court vacated Fischer’s conspiracy conviction, since Rutledge required courts to
consider conspiracy to be a lesser included offense of a CCE violation. In the years
following the district court’s decision to vacate his conspiracy conviction, Fischer has filed a
litany of pro se motions challenging the legitimacy of his CCE conviction and the district
court’s decision to vacate his conspiracy conviction instead of his CCE conviction. While
No. 10‐2838 Page 2
the persistence with which Fischer has sought relief is understandable–Fischer faces a life
sentence under the CCE conviction and only a 35‐year term of imprisonment under the
conspiracy conviction–his continual refusal to comply with our procedural rules has caused
the majority of his appeals to be dismissed out of hand. The motion underlying Fischer’s
current appeal is yet another example of him attempting to skirt our rules.
On June 28, 2010, Fischer filed a motion–titled “Rule 35 Motion for Correction or
Reduction of Sentence”–in the District Court for the Northern District of Illinois. In this
motion, Fischer once again requested that the district court reverse his conviction for acting
as a principal administrator in a continuing criminal enterprise of importing and
distributing marijuana, and reinstate the conspiracy conviction that the court had vacated.
He argued that subsequent precedent–chiefly that set forth in Richardson v. United States,
526, U.S. 813 (1998) and Hawkins v. United States, 2006 U.S. Dist. LEXIS 76439 (S.D. Ill.
2006)–provided grounds for revisiting his district court’s prior decision.
On July 27, 2010, the district court dismissed Fischer’s motion. It held that Fischer’s
motion was not actually a Rule 35 motion, as Rule 35 only provides a vehicle for challenging
the propriety of a sentence and not the conviction underlying the sentence. The court
interpreted Fischer’s motion as an attempt to vacate, set aside or correct his CCE sentence
and stated that 28 U.S.C. § 2255 was the only procedural means by which Fischer could seek
such relief. After construing Fischer’s filing as a 28 U.S.C. § 2255 motion, the court
dismissed it for lack of jurisdiction, finding that Fischer’s motion constituted a successive
petition that required certification by the Seventh Circuit prior to being heard by the district
court.
The district court’s determination that it lacked jurisdiction over Fischer’s motion
was correct. Despite Fischer’s attempts to recharacterize the relief sought in his initial
motion, it is clear upon review of that document that it asks the district court to set aside
Fischer’s CCE conviction. As we held when considering one of Fischer’s prior appeals, “the
narrow function of Rule 35 is to permit correction of an illegal sentence, not to reexamine
errors occurring at the trial or other proceedings prior to the imposition of sentence.” United
States v. Fischer, 205 F.3d 967, 971‐72 (7th Cir. 2000). Hence, it was proper for the district
court to view Fischer’s motion as a 28 U.S.C. § 2255 motion. Melton v. United States, 359 F.3d
855, 856‐57 (7th Cir. 2004). Since Fischer has filed numerous § 2255 motions previously, he
is required to obtain certification from this court prior to filing a § 2255 motion in the district
court. See 28 U.S.C. § 2244(b)(3)(A); United States v. Carraway, 478 F.3d 845, 849 (7th Cir.
2007). Because Fischer’s motion was not certified by this court, it was proper for the district
court to determine that it lacked jurisdiction over the motion.
For the foregoing reasons, the decision of the district court is AFFIRMED.