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United States v. Newman

United States Court of Appeals, Seventh Circuit

July 23, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
EMANUEL T. NEWMAN, Defendant-Appellant

Submitted July 22, 2015.

Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:91 cr 02-3RLM -- Robert L. Miller, Jr., Judge.

For United States of America (15-1326, 15-1474), Plaintiff - Appellee: David E. Hollar, Attorney, Office of The United States Attorney, Hammond, IN.

Emanuel T. Newman, Defendant - Appellant (15-1326), Pro se, Lisbon, OH.

Emanuel T. Newman, Defendant - Appellant (15-1474), Pro se, Lisbon, OH.

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

OPINION

Page 785

Easterbrook, Circuit Judge.

More than 20 years ago, Emanuel Newman was sentenced to 540 months' imprisonment for drug offenses, which included distributing between 40 and 50 kilograms of cocaine. See United States v. Newman, No. 91-3192 (7th Cir. Oct. 5, 1993) (unpublished order affirming his conviction and sentence). Congress and the Sentencing Commission have several times reduced permissible sentences for sellers of crack cocaine, but until recently none of these changes affected persons who distributed powder cocaine. Amendment 782 to the Sentencing Guidelines, however, effects an across-the-board reduction of two offense levels in the drug-quantity table at U.S.S.G. § 2D1.1. Because the Sentencing Commission made that change retroactive, 18 U.S.C. § 3582(c)(2) allows district judges to reduce the sentences of persons already in prison (though Amendment 782 provides that reductions under its terms cannot permit anyone to be released before November 1, 2015).

Newman's motion under § 3582(c)(2) contended that his revised sentencing range is 292 to 365 months (the original had been 360 months to life), and the prosecutor agreed. The prosecutor recommended a reduction to 472 months, observing that Newman's crimes (and criminal history) included violence as well as drug sales, but on December 30, 2014, the district court entered an order cutting the sentence to 348 months. This was achieved through a combination of concurrent and consecutive sentences that need not be explained here. It is enough for now that no one doubts that the order of December 30 is lawful: the sentence on each count is within the statutory maximum, and a term of 348 months is authorized by Amendment 782 in conjunction with § 3582(c)(2). The order states that the judge deemed the prosecutor's 472-month recommendation too high. The United States did not protest and did not appeal.

A month later, on January 28, 2015, the district judge amended the order by changing which sentences run concurrently with or consecutive to which other sentences. The total remained at 348 months. This order, like that of December 30, states that 472 months would be unduly long.

But the next day the district judge amended the order yet again. The revised order rearranges which sentences run consecutively to which other sentences, and

Page 786

the upshot is a total of 472 months in prison. The language from the earlier orders stating that 472 months would be too high vanished. The judge did not say why he now thought 472 months the appropriate sentence and did not cite any ...


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