In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2871
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MARLON BEARD,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 04‐CR‐10075 — Michael M. Mihm, Judge.
____________________
SUBMITTED FEBRUARY 6, 2014* — DECIDED MARCH 12, 2014
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Before WOOD, Chief Judge, and KANNE and TINDER, Circuit
Judges.
WOOD, Chief Judge. Marlon Beard appeals from an order
denying his motion to reconsider the rejection of his request
for a sentence reduction under 18 U.S.C. § 3582(c)(2). Beard
* After examining the parties’ briefs and the record, we have concluded
that oral argument is unnecessary. The appeal is therefore submitted on
the briefs and the record. See Fed. R. App. P. 34(a)(2)(C).
2 No. 13‐2871
was seeking that reduction based on the Fair Sentencing Act
of 2010 and its implementing amendments to the sentencing
guidelines. The Sentencing Commission has made those
amendments retroactive. His appeal, however, founders on a
fundamental problem: the district court had no authority to
order the relief that Beard sought. Its judgment denying re‐
lief was therefore correct.
Beard pleaded guilty in 2005 to possessing crack cocaine
with the intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1). Because the offense involved at least 50 grams,
he was sentenced to what was at the time the statutory min‐
imum of 10 years, see id. § 841(b)(1)(A). In 2008, after the
Sentencing Commission had retroactively lowered the of‐
fense levels for most crack crimes, Beard requested a re‐
duced sentence under § 3582(c)(2). See U.S.S.G. App. C., Vol.
III 226–31, 253 (2011). The district court denied his motion on
the ground that Beard had been sentenced to a statutorily
mandated period that had not changed.
In 2012, Beard again moved under § 3582(c)(2) for a re‐
duced sentence. This time he argued that the Fair Sentencing
Act, which increased the threshold amount of crack neces‐
sary to trigger § 841(b)(1)’s enhanced sentences, along with
the retroactive, implementing amendments to the guidelines,
make him eligible for a reduced sentence. See Pub. L. No.
111–220, 124 Stat. 2372; U.S.S.G. Supp. App. C., Vol. III 374–
85, 391–98 (2011). In support Beard cited the panel opinion in
United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), which
concluded that the purpose behind the Fair Sentencing Act
demands that the legislation benefit all crack offenders, in‐
cluding those who were sentenced before its enactment. (The
en banc Sixth Circuit later repudiated that position and held
No. 13‐2871 3
that the Act does not retroactively undo final sentences. See
United States v. Blewett, Nos. 12‐5226 & 12‐5582, 2013 WL
6231727 (6th Cir. Dec. 3, 2013).)
The district court denied Beard’s 2012 motion. It rea‐
soned that relief under the Fair Sentencing Act is foreclosed
by our decision in United States v. Foster, 706 F.3d 887, 888
(7th Cir. 2013), which concludes that a sentence reduction
under § 3582(c)(2) is not a form of resentencing that allows a
defendant to take advantage of postsentencing changes in
the law, such as the Fair Sentencing Act. See United States v.
Robinson, 697 F.3d 443, 444–45 (7th Cir. 2012). Moreover, we
added, the retroactive amendments to the guidelines, al‐
though intended to benefit even defendants sentenced be‐
fore enactment of the Fair Sentencing Act, could not help a
person in Beard’s position because his prison sentence was
dictated by the applicable statutory minimum. See id. Six‐
teen days later Beard, still pressing the court to apply the
panel’s opinion in Blewett, filed a motion asking the district
court to reconsider its decision. The district court denied this
motion.
Beard filed a notice of appeal. Critically, his notice of ap‐
peal came too late to serve as the basis of an appeal from the
district court’s denial of the underlying 2012 motion. See
FED. R. APP. P. 4(b)(1)(A) (requiring as relevant here notice of
appeal within 14 days of the order being appealed). The ap‐
peal before us is therefore timely only to contest the decision
on Beard’s purported motion for reconsideration. But there
is a serious problem with that motion, and thus with its suit‐
ability as a subject of appeal: it did not meet the require‐
ments for a motion for reconsideration.
4 No. 13‐2871
The rules of criminal procedure offer a number of possi‐
bilities for post‐judgment motions. Federal Rule of Criminal
Procedure 33 permits a defendant to file a motion to vacate a
judgment and grant a new trial; Rule 29 authorizes a motion
for a judgment of acquittal; and Rule 35 spells out when a
defendant may move to correct or reduce his sentence. All of
these rules are subject to time limits; in addition, Rule 35 is
available only if the government files a motion (which it did
not do here), and so it is doubly useless for Beard. More gen‐
erally, we have recognized that as a matter of general prac‐
tice a motion to reconsider in a criminal prosecution is prop‐
er and may be entertained if it is filed in time. United States v.
Rollins, 607 F.3d 500, 504 (7th Cir. 2010). The applicable time
is the same 14‐day period that applies to other motions that
suspend the time for taking an appeal under FED. R. APP. P.
4(b). See United States v. Redd, 630 F.3d 649, 650 (7th Cir.
2011) (applying the 14‐day rule to a motion to reconsider a
ruling under § 3582(c)(2)).
Beard’s submission, as we noted, was filed 16 days after
the denial of his § 3582(c)(2) motion; it was thus untimely.
See Redd, 640 F.3d at 650. By default, this meant that at best it
was, just as the motion we considered in Redd, nothing more
in substance than a renewed motion under § 3582(c)(2). The
caption Beard affixed is of no moment; the motion seeks a
reduction in his sentence. And it does so long after any stat‐
ute or rule of procedure authorizes the district court to grant
the requested relief. See United States v. Carraway, 478 F.3d
845, 848 (7th Cir. 2007); Romandine v. United States, 206 F.3d
731, 734–36 (7th Cir. 2000).
This presents us with the question whether § 3582(c)(2)’s
limitation on when a sentence modification is permitted
No. 13‐2871 5
strips the district court of subject‐matter jurisdiction to con‐
sider an impermissible successive motion, or if it imposes
only a non‐jurisdictional case processing rule. Although the
parties have not raised this issue, we address it to fulfill our
obligation to ensure that federal courts have subject‐matter
jurisdiction at each stage of the proceedings. Ne. Rural Elec‐
tric Membership Corp. v. Wabash Valley Power Ass’n, 707 F.3d
883, 890 (7th Cir. 2013). “[L]imits on the reach of federal
statutes … are only jurisdictional if Congress says so.”
Bowles v. Russell, 551 U.S. 205, 216–17 (2007). In recent years,
the Supreme Court has repeatedly held that courts should
not jump too readily to the conclusion that a provision is ju‐
risdictional. See, e.g., Union Pac. R.R. Co. v. Bhd. of Locomotive
Eng’rs & Trainmen, 558 U.S. 67, 81 (2009) (citing cases). A re‐
striction should be deemed jurisdictional only if it “reduce[s]
the adjudicatory domain of a tribunal” and cannot be forfeit‐
ed. Id. We see nothing in § 3582(c)(2) that meets this strin‐
gent test. At most, the statute creates a rule under which
successive motions are prohibited and should be denied as
outside the scope of the statute. Our sister circuits have come
to the same conclusion. See United States v. Trujillo, 713 F.3d
1003, 1006–07 (9th Cir. 2013); United States v. Weatherspoon,
696 F.3d 416, 421 (3d Cir. 2012).
Even though jurisdiction was secure, the district court
had no choice but to deny Beard’s successive § 3582(c)(2)
motion. Section 3582(c)(2) permits the district court to modi‐
fy a sentence that “has subsequently been lowered by the
Sentencing Commission.” 18 U.S.C. 3582(c)(2); see Robinson,
698 F.3d at 444. “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.” Redd, 630 F.3d at 651. In
6 No. 13‐2871
other words, prisoners have only one bite at the apple per
retroactive amendment to the sentencing guidelines. See
United States v. Goodwyn, 596 F.3d 233, 235–36 (4th Cir. 2010)
(permitting prisoner only one opportunity to request sen‐
tence modification under same guideline amendment).
Beard availed himself of his one opportunity, and he now
must accept the district court’s decision.
We AFFIRM the judgment of the district court.