White v. United States, 13–3396.

• Decision Date: 15 April 2014
• Docket Number: No. 13–3396.,13–3396.
• Citation: 745 F.3d 834
• Parties: Juan M. WHITE, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

745 F.3d 834

Juan M. WHITE, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 13–3396.

United States Court of Appeals,Seventh Circuit.

Submitted Feb. 18, 2014.

Decided March 14, 2014.

Rehearing and Rehearing En Banc Denied April 15, 2014.

Juan White, Greenville, IL, pro se.

Colin S. Bruce, Attorney, Office of the United States Attorney, Urbana, IL, for Respondent–Appellee.

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

A jury convicted Juan White of distributing more than 50 grams of cocaine base, 21 U.S.C. § 841(a)(1), and a judge sentenced him to 360 months' imprisonment. He filed and lost a collateral attack under 28 U.S.C. § 2255. After the Sentencing Commission adopted Amendment 750, which retroactively cut the offense levels for crack-cocaine offenses, White asked the judge to reduce his sentence under 18 U.S.C. § 3582(c). The judge calculated the newly applicable range under Amendment 750 and in June 2012 reduced White's sentence to 292 months.

Nine months later White filed another § 2255 petition. He contends that his sentence is illegally high because the Guidelines range calculated in 2006 is wrong. According to White, the judge should not have treated him as a manager or supervisor of other criminals, and should have deducted offense levels for acceptance of responsibility. Had the judge done things properly in 2006, White maintains, he would have received a lower sentence in 2012 after the Sentencing Commission modified the quantity table for crack cocaine.

Without deciding whether either of White's contentions is within the ambit of § 2255, the district judge dismissed the petition as barred by 28 U.S.C. § 2244 and § 2255(h). These statutes forbid any “second or successive” petition that has not been authorized by the court of appeals under specified criteria—and White does not contend that his current petition is authorized under those criteria. The district judge also observed that the petition is untimely under § 2255(f), which (again with irrelevant exceptions) gives a prisoner only one year to launch a collateral attack.

To contest this decision on appeal, White needs a certificate of appealability. 28 U.S.C. § 2253(c). His principal arguments concern the meaning of 28 U.S.C. § 2244 and § 2255, but a certificate may be issued if the appellant makes a substantial showing that he has been deprived of a constitutional right, § 2253(c)(2), and antecedent statutory issues also are substantial.See Slack v. McDaniel, 529 U.S. 473, 484–85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We need not decide whether White has a substantial constitutional objection to his sentence, because his statutory contentions do not meet Slack's standard.

White contends that his sentence reduction in 2012 not only restarted the clock under § 2255(f) but also reset to zero his count of collateral attacks. According to White, a new clock and a new count accompanies every new sentence. No other court of appeals has addressed such an argument, but its disposition is not difficult.

Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (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.

This might be thought a semantic quibble, if the result of Amendment 750 were that older judgments are vacated and all prisoners resentenced. Then, as in Magwood, the judge might have committed a second time the error that the prisoner sought to contest. But White, unlike Magwood, was not sentenced anew. The procedure established by ...