Submitted February 6, 2014[*].
Appeal from the United States District Court for the Central District of Illinois. No. 04-CR-10075 -- Michael M. Mihm, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Bradley W. Murphy, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Peoria, IL.
MARLON BEARD, Defendant - Appellant, Pro se, Fort Dix, NJ.
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 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 relief 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 minimum of 10 years, see id. § 841(b)(1)(A). In 2008, after the Sentencing Commission had retroactively lowered the offense levels for most crack crimes, Beard requested a reduced 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 reduced sentence. This time he argued that the Fair Sentencing Act, which increased the threshold amount of crack necessary 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, including those who were sentenced before its enactment. (The en banc Sixth Circuit later repudiated that position and held 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 reasoned 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, although intended to benefit even defendants sentenced before 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. Sixteen 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 appeal 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 appeal 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, ...