In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-‐‑3396
JUAN M. WHITE,
Petitioner-‐‑Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-‐‑Appellee.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 13-‐‑CV-‐‑2070 — Michael P. McCuskey, Judge.
____________________
SUBMITTED FEBRUARY 18, 2014 — DECIDED MARCH 14, 2014
____________________
Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge. A jury convicted Juan White
of distributing more than 50 grams of cocaine base, 21 U.S.C.
§841(a)(1), and a judge sentenced him to 360 months’ im-‐‑
prisonment. He filed and lost a collateral attack under 28
U.S.C. §2255. After the Sentencing Commission adopted
Amendment 750, which retroactively cut the offense levels
for crack-‐‑cocaine offenses, White asked the judge to reduce
his sentence under 18 U.S.C. §3582(c). The judge calculated
2 No. 13-‐‑3396
the newly applicable range under Amendment 750 and in
June 2012 reduced White’s sentence to 292 months.
Nine months later White filed another §2255 petition. He
contends that his sentence is illegally high because the
Guidelines range calculated in 2006 is wrong. According to
White, the judge should not have treated him as a manager
or supervisor of other criminals, and should have deducted
offense levels for acceptance of responsibility. Had the judge
done things properly in 2006, White maintains, he would
have received a lower sentence in 2012 after the Sentencing
Commission modified the quantity table for crack cocaine.
Without deciding whether either of White’s contentions
is within the ambit of §2255, the district judge dismissed the
petition as barred by 28 U.S.C. §2244 and §2255(h). These
statutes forbid any “second or successive” petition that has
not been authorized by the court of appeals under specified
criteria—and White does not contend that his current peti-‐‑
tion is authorized under those criteria. The district judge also
observed that the petition is untimely under §2255(f), which
(again with irrelevant exceptions) gives a prisoner only one
year to launch a collateral attack.
To contest this decision on appeal, White needs a certifi-‐‑
cate of appealability. 28 U.S.C. §2253(c). His principal argu-‐‑
ments concern the meaning of 28 U.S.C. §2244 and §2255, but
a certificate may be issued if the appellant makes a substan-‐‑
tial showing that he has been deprived of a constitutional
right, §2253(c)(2), and antecedent statutory issues also are
substantial. See Slack v. McDaniel, 529 U.S. 473, 484–85 (2000).
We need not decide whether White has a substantial consti-‐‑
tutional objection to his sentence, because his statutory con-‐‑
tentions do not meet Slack’s standard.
No. 13-‐‑3396 3
White contends that his sentence reduction in 2012 not
only restarted the clock under §2255(f) but also reset to zero
his count of collateral attacks. According to White, a new
clock and a new count accompanies every new sentence. No
other court of appeals has addressed such an argument, but
its disposition is not difficult.
Magwood v. Patterson, 130 S. Ct. 2788 (2010), holds that the
issuance of a writ of habeas corpus setting aside a sentence
as invalid, followed by the imposition of a new sentence, re-‐‑
sets the clock and the count, so that an attack may be waged
against the new sentence even if the same legal grounds
could have been urged against the original sentence.
(Whether Magwood has any other effect was the subject of
disagreement among members of this court in Suggs v. Unit-‐‑
ed States, 705 F.3d 279 (7th Cir. 2013). The issue in Suggs does
not affect White’s case.) White maintains that he is in the
same position as Magwood: he has been resentenced, and he
now wants to use §2255 to contest that sentence on grounds
that existed before the new sentence was imposed.
To say that White’s sentence has changed is not, howev-‐‑
er, to say that he is in the same position as Magwood, who
demonstrated in his initial collateral attack that his original
sentence violated the Constitution. See 130 S. Ct. at 2797.
White’s invocation of Amendment 750 did not rest on a con-‐‑
tention that his 2006 sentence was unlawful (constitutionally
or in any other way), and the district judge did not find it so.
Instead White contended, and the judge concluded, that the
Guidelines had changed after 2006, and that §3582(c) author-‐‑
izes a reduction because the Sentencing Commission made
that change retroactive.
4 No. 13-‐‑3396
This might be thought a semantic quibble, if the result of
Amendment 750 were that older judgments are vacated and
all prisoners resentenced. Then, as in Magwood, the judge
might have committed a second time the error that the pris-‐‑
oner sought to contest. But White, unlike Magwood, was not
sentenced anew. The procedure established by §3582(c) is
not “resentencing”. See Dillon v. United States, 560 U.S. 817
(2010). It is a sentence-‐‑reduction proceeding.
There are substantial differences between resentencing
and sentence reduction under §3582(c). One is that the dis-‐‑
trict judge need not (and usually does not) receive evidence
or reopen any issue decided in the original sentencing. Nor
does the judge hold a hearing at which the defendant is pre-‐‑
sent and a new sentence is pronounced. Instead the judge
takes as established the findings and calculations that led to
the sentence and changes only the revised Guideline, leaving
everything else the same. See United States v. Wren, 706 F.3d
861 (7th Cir. 2013), relying on U.S.S.G. §1B1.10(b)(1), which
tells courts that when making retroactive adjustments they
“shall leave all other guideline application decisions unaf-‐‑
fected.” The penalty goes down, but the original judgment is
not declared invalid.
White was not resentenced in 2012. The judge was forbid-‐‑
den to reexamine the effect that acceptance of responsibility
and supervision of others have on White’s Guidelines range.
The judge accordingly did not commit—could not have
committed, if he tried—any repetition of an error supposed-‐‑
ly rooted in 2006. No error subject to collateral review oc-‐‑
curred in 2012. Accordingly Magwood does not reset the
clock or the count, for purposes of §2244 and §2255, when a
prisoner’s sentence is reduced as the result of a retroactive
No. 13-‐‑3396 5
change to the Sentencing Guidelines. The district court
properly dismissed White’s latest petition as both untimely
and barred by the lack of prior appellate approval. We there-‐‑
fore decline to issue a certificate of appealability, and we
dismiss this appeal.