First Step Act Motion for Reconsideration.

Byline: Derek Hawkins

7th 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 The majority in United States v. Rutherford, No. 19-3012 (7th Cir. June 23, 2020) (nonprecedential disposition), concluded that a motion to reconsider suspends the decision's finality.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...

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