Sentencing — crack cocaine

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U.S. Court of Appeals for the Seventh Circuit

Criminal

Sentencing — crack cocaine

A federal prisoner’s successful recalculation of his sentence under 18 U.S.C. 3582(c) does not entitle him to file a successive collateral attack under 28 U.S.C. 2255.

“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, resets 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. United 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, however, 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 contention 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) authorizes a reduction because the Sentencing Commission made that change retroactive.”

Dismissed.

13-3396 White v. U.S.

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Easterbrook, J.