First Step Act – Motion for Reconsideration

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7^th Circuit Court of Appeals

Case Name: United States of America v. William R. Hible, et al.,

Case No.: 20-1824; 20-2421

Officials: EASTERBROOK, WOOD, and BRENNAN, Circuit Judges.

Focus: First Step Act – Motion for Reconsideration

We have consolidated two appeals that present a common question: whether a motion to reconsider a decision under the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194, suspends the decision’s finality and thus extends the time for appeal. In each case the prisoner seeking a shorter sentence filed, within the time allowed for appeal, a motion asking the district judge to reconsider an adverse decision. In each case the judge denied that motion, and the prisoner appealed. Each notice of appeal was filed within 14 days of the decision on the motion to reconsider but more than 14 days after the original decision. The United States has asked us to dismiss both appeals, contending that a motion to reconsider does not affect the time for appeal.

This question has arisen before but was resolved in an order. The majority in United States v. Rutherford, No. 19-3012 (7th Cir. June 23, 2020) (nonprecedential disposition), concluded that a motion to reconsider suspends the decision’s finality. Circuit Judge Barrett (as she then was) dissented, concluding that Fed. R. Crim. P. 35 provides the only means to review a sentencing decision. As Fed. R. App. P. 4(b)(5) specifies that a motion under Rule 35 does not affect the time for appeal, an appeal following the denial of reconsideration often will be untimely. The United States asks us to follow Justice Barrett’s approach. But we think that the majority got this right and publish this opinion to settle the law of the circuit.

William Hible pleaded guilty to distributing more than five grams of crack cocaine and was sentenced to 240 months’ imprisonment. His presentence report concluded that his relevant conduct included the distribution of more than 250 grams of crack, 50 kilograms of powder cocaine, and 2,000 kilograms of marijuana. A district judge cut the sentence to 225 months under the First Step Act but declined to reduce it further, remarking that Hible’s substantial dealing in powder cocaine is outside the First Step Act’s scope. Hible contends that the judge should not have relied on the presentence report, because before imposing the original sentence the court did not resolve a contest to the report’s accuracy. But there’s a reason: Hible and the prosecutor made a bargain under which, in exchange for receiving a lower criminal-history category, Hible gave up his challenge to the report’s conclusions. The district judge did not abuse his discretion by giving weight to the report when, years later, Hible sought a sentence below the one he had bargained for. See United States v. Sutton, 962 F.3d 979, 986–87 (7th Cir. 2020).

Nor did the judge err in considering Hible’s prior felony conviction. If he had received an original sentence in 2020, the conviction would not have counted because of changes that the First Step Act makes to recidivist sentencing under 21 U.S.C. §841. But these changes are not retroactive, and we recently held that district judges need not apply them when considering motions under retroactive changes to the guidelines. See United States v. Fowowe, 1 F.4th 522, 529, 532 (7th Cir. 2021). See also United States v. Thacker, 4 F.4th 569 (7th Cir. 2021) (similar decision concerning motions for compassionate release). What is true of retroactive changes to the guidelines and motions for compassionate release is true when a new statute gives district judges discretion to reduce old sentences.

Hible’s remaining arguments have been considered but do not require analysis. Matthew Turner, the other appellant, received a life sentence for conspiring to distribute both crack and powder cocaine. A life sentence was mandatory given the quantities involved and Turner’s prior drug convictions. 21 U.S.C. §841(b)(1)(A)(ii) (powder), (b)(1)(A)(iii) (crack). President Obama commuted this sentence to 30 years’ imprisonment, and Turner sought more relief from the judiciary. The district court denied that request, observing that under the Fair Sentencing Act (retroactively applied through the First Step Act) the statutory minimum sentence remains life in prison. Even if all of the crack Turner distributed were to be disregarded, the powder alone would require a life sentence.

United States v. Hudson, 967 F.3d 605, 610 (7th Cir. 2020), holds that, when a defendant has been sentenced for two crimes, one covered by the First Step Act and the other not, a district judge has discretion to revise the entire sentencing package. That does not help Turner, however, because Hudson concerns the exercise of discretion. It does not change any statutory penalty. Turner’s statutory minimum penalty was and remains life in prison. The President’s pardon power permits him to reduce such a sentence—and the President has exercised that authority in Turner’s favor—but a district judge lacks equivalent power. Unless Turner receives further clemency, his sentence cannot be less than 30 years.

Affirmed

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Derek A Hawkins is Corporate Counsel, at Salesforce.