United States v. Hawkins, William E. , 181 F. App'x 569 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2006*
Decided May 11, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-3494
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois
v.
No. 90-CR-30067-WDS
WILLIAM E. HAWKINS,
Defendant-Appellant. William D. Stiehl,
Judge.
ORDER
A jury convicted William Hawkins of multiple counts of conspiracy to
distribute and of possession with intent to distribute cocaine, in violation of 21
U.S.C. §§ 846 and 841(a)(1), (b)(1)(B). After completing his direct appeal and filing
several collateral attacks on his convictions, Hawkins then filed a motion under
former Federal Rule of Criminal Procedure 35(a) challenging the legality of his
*
After an examination of the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus the appeal is submitted on the
appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).
No. 05-3494 Page 2
sentence.1 The district court denied the motion. We review the denial of a Rule
35(a) motion de novo. United States v. Celani, 898 F.2d 543, 544 (7th Cir. 1990).
Hawkins contends that his 35-year sentence on the possession with intent to
distribute count is illegal because it exceeds the statutory maximum as it existed on
March 27, 1987, the date he committed the relevant offenses. See Hill v. United
States, 368 U.S. 424, 430 (1962) (explaining that a sentence outside the applicable
statutory range is illegal). At that time, he says, § 841(b)(1)(B) provided a statutory
maximum term of imprisonment of 20 years.
Hawkins is wrong. On October 27, 1986, Congress enacted the Anti-Drug
Abuse Act of 1986 (ADAA), which amended § 841(b)(1)(B) to allow a statutory
maximum sentence of 40 years’ imprisonment. ADAA § 1002; Gozlon-Peretz v.
United States, 498 U.S. 395 (1991). The amendment took effect immediately.
Gozlon-Peretz, 498 U.S. at 395; United States v. Padilla, 869 F.2d 372, 382 (8th Cir.
1989); United States v. Meyers, 847 F.2d 1408, 1414 (9th Cir. 1988). Hawkins
argues that because § 1004(b) of the ADAA states that “[t]he amendments made by
this section . . . shall take effect on [November 1, 1987],” Congress intended all
amendments to § 841 (enacted by § 1002 of the ADAA) to take effect on November 1,
1987. But the Supreme Court has rejected this argument. Gozlon-Peretz, 498 U.S.
at 406-07 (explaining that the effective date in § 1004(b) pertains only to
amendments made by § 1004(b) and “not to the entire ADAA, nor even to one title
or chapter in that enactment”). Thus on the date that Hawkins committed his
offense, March 27, 1987, he was subject to a maximum prison term of 40 years. See
§ 841(b)(1)(B). Accordingly, Hawkins’s 35-year term of imprisonment is legal, and
he has no remedy under Rule 35(a).
AFFIRMED.
1
Because Hawkins committed the offense relevant to this appeal before
November 1, 1987, his case is governed by the 1985 version of Rule 35(a). United
States v. Jeffers, 388 F.3d 289, 292 (7th Cir. 2005); United States v. Canino, 212
F.3d 383, 384 (7th Cir. 2000). That version provides, in relevant part, that “[t]he
court may correct an illegal sentence at any time.” Hill v. United States, 368 U.S.
424, 430 n.7 (1962).