Submitted May 20, 2016 [*]
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:04-cr-00495-4 -
Rebecca R. Pallmeyer, Judge.
Ripple, Kanne, and Sykes, Circuit Judges.
case comes to us in a unique procedural posture. Eddie Bell
was convicted of conspiring to distribute crack cocaine and
of using a communications facility to commit a felony.
See 21 U.S.C. §§ 841(a), 843(b), 846. We
affirmed Mr. Bell's sentence following a limited remand.
Mr. Bell then brought a collateral attack under 28 U.S.C.
§ 2255, arguing that his attorney had abandoned him in
this court by not replying to the district court's
response to the limited remand. Granting collateral relief,
the district court authorized Mr. Bell to submit to us the
reply his attorney had not filed. Upon review of that reply,
we conclude that Mr. Bell's submission offers no reason
for us to revise his sentence. We therefore affirm the
judgment of the district court.
the history of this case is important to the resolution of
the situation before us, we set forth that history in some
detail. Mr. Bell, a member of a broad drug distribution
conspiracy in Chicago, was convicted of conspiring to
distribute crack cocaine and of using a communications
facility to commit a felony. He was sentenced to 300
months' imprisonment, below the guideline range of 360
months to life. We affirmed Mr. Bell's conviction but
ordered a limited remand so that the district court could
tell us whether it was inclined to resentence Mr. Bell in
light of "the 2007 Amendment to U.S.S.G. § 2D1.1
and Kimbrough v. United States, 552 U.S. 85 (2007),
" which held that district courts were permitted to
deviate from the guidelines' ratio for crack cocaine to
powder cocaine. United States v. Martin, 618 F.3d
705, 739 (7th Cir. 2010) (parallel citations omitted);
see generally United States v. Taylor, 520 F.3d 746,
748-49 (7th Cir. 2008) (detailing how district courts should
conduct limited remand in light of Kimbrough).
remand, the district court said that it did not wish to
resentence Mr. Bell. The court first explained that Mr. Bell
received the benefit of the 2007 amendment to the sentencing
guidelines because he was sentenced after it went into
effect. Next, the district court advised that, because of Mr.
Bell's extensive criminal history and attempts to
diminish that history during the original sentencing hearing,
"[u]nder no circumstances would a sentence shorter than
300 months be appropriate." Following the district
court's order, we invited the parties to file their views
on the appropriate disposition of the appeal. Neither side
responded to that invitation (although Mr. Bell tried to
challenge the district court's disposition through a
separate and untimely pro se appeal that we dismissed as
moot), and we affirmed Mr. Bell's sentence. United
States v. Martin, Nos. 07-2272, 07-4010, 07-3893,
07-3940, 2011 WL 5519811 (7th Cir. Nov. 14, 2011).
Bell next brought a collateral challenge to his sentence
under 28 U.S.C. § 2255. He argued (among other things)
that his appellate attorney had abandoned him after the
district court issued its order on remand. The district court
agreed with Mr. Bell. It reasoned that Mr. Bell's
appellate counsel did not tell him that we had asked for the
parties' views on the district court's response to
the limited remand, nor did counsel file a response;
therefore, counsel denied Mr. Bell "access to the
appellate proceeding." It also found that there was a
reasonable probability that, but for counsel's deficient
performance, Mr. Bell would have submitted his views, so he
did not need to establish further prejudice. See Roe v.
Flores-Or-tega, 528 U.S. 470, 483 (2000). The court
instructed Mr. Bell's new counsel to "pursue an
appeal from [its] order declining to re-sentence Mr.
Bell." Mr. Bell's counsel then filed a fresh notice
of appeal in Mr. Bell's criminal case, which we docketed
as this appeal.
usual case of attorney abandonment occurs when an attorney
has failed to file a direct appeal. In such a case, the
attorney has unconstitutionally deprived the defendant of the
opportunity to appeal. Ryan v. United States, 657
F.3d 604, 606 (7th Cir. 2011). The relief therefore afforded
is a direct appeal following the entry of a new judgment in
the underlying criminal case. See, e.g., id.;
United States v. Hirsch, 207 F.3d 928, 931 (7th Cir.
2000); Castellanos v. United States, 26 F.3d 717,
720 (7th Cir. 1994). The present case is different. The
abandonment occurred during a limited remand. During
a limited remand, we retain jurisdiction. The abandonment by
Mr. Bell's attorney therefore occurred at the last stage
of a pending appeal. To reflect this unique
situation, the district court simply granted Mr. Bell a
chance to tell us his views about the district court's
answer to our inquiry.
district court's relief attempted to reflect the posture
of the appeal that Mr. Bell's counsel had abandoned.
After granting his § 2255 motion, the district court
therefore did not enter a new judgment in Mr. Bell's
criminal case to restart the time to appeal. The Government
insists that, without such a new judgment, Mr. Bell's
fresh notice of appeal was untimely because the only judgment
in the criminal case was the original judgment entered in
2007. Without a new judgment, the Government correctly
contends, Mr. Bell's only recourse is to move to recall
the mandate in his original appeal. See generally
Calderon v. Thompson, 523 U.S. 538, 549-50 (1998);
McGeshick v. Choucair, 72 F.3d 62, 63-64 (7th Cir.
construe Mr. Bell's new notice of appeal as a motion to
recall the original mandate. See Patterson v. Crabb,
904 F.2d 1179, 1180 (7th Cir. 1990) (construing a petition
for a writ of mandamus as a motion to recall a mandate). Upon
examination of his submission to us, we note that his only
discussion of the district court's decision on remand is
to say that "[t]he district court had the authority to
make that pronouncement, and Mr. Bell is not challenging that
authority." Mr. Bell also presents no challenge to the
reasonableness of his sentence.
Bell instead raises an argument outside the scope of our
review. He contends we should remand this case so the
district court may determine if it should lower his sentence
in light of Amendment 782 to the sentencing guidelines.
Amendment 782 reduced the base offense levels assigned to
drug quantities, including those applicable to Mr. Bell, by
two levels. U.S.S.G. app. C., amend. 782, p. 71 (2014). We
cannot address Mr. Bell's argument, however, as it is
unrelated to the only issue properly before us. Further, this
form of retroactive relief is unavailable to a defendant on
direct appeal. See, e.g., United States v. Taylor,
778 F.3d 667, 672 (7th Cir. 2015) (holding that a defendant
could not seek relief on direct appeal "based on
retroactive Amendment 782"); United States v.
Hayden, 775 F.3d 847, 850 (7th Cir. 2014) ("Our
handling of [the defendant's] direct appeal is not
changed, however, by Amendment 782 having taken
effect."); United States v. Tatum, 548 F.3d
584, 588 (7th Cir. 2008) (holding that another retroactive
amendment to the sentencing guidelines involving a two-level
reduction was not ground for a remand on direct appeal). Mr.
Bell instead must file in the district court a motion under
18 U.S.C. § 3582(c)(2) raising this argument, allow the
district court to rule on it, and then appeal from that
order. See United States v. White, 582 F.3d 787, 799
(7th Cir. 2009). We note that he has filed such a motion in
the district court.
in light of the district court's action, we recall our
original mandate, consider Mr. Bell's submission, and
affirm once again our judgment in his direct appeal.