NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 12, 2011*
Decided January 31, 2011
Before
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐1062
VARNADOR SUTTON, Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:10‐cv‐00552‐LJM‐TAB
UNITED STATES OF AMERICA,
Respondent‐Appellee. Larry J. McKinney, Judge
O R D E R
In 2008, Varnador Sutton was convicted of health care fraud, see
18 U.S.C. § 1347, and
sentenced to the statutory maximum of ten years’ imprisonment. We affirmed his
conviction on appeal, but vacated and remanded for resentencing. United States v. Sutton,
582 F.3d 781, 785‐86 (7th Cir. 2009). Specifically, we instructed the district court to
recalculate Sutton’s advisory Guidelines’ range without a six‐level upward adjustment for
more than 250 victims. U.S.S.G. § 2B1.1(b)(2)(C); Sutton,
582 F.3d at 786. On remand, the
district court reimposed the statutory maximum of ten years’ imprisonment. Sutton
appealed from the resentencing, and his appeal (No. 09‐4140) is currently pending.
*
This successive appeal has been submitted to the original panel under Operating
Procedure 6(b).
No. 11‐1062 Page 2
Meanwhile, Sutton moved in the district court to vacate or set aside his sentence
under
28 U.S.C. § 2255. Reasoning that Sutton’s pending appeal rendered his § 2255 motion
premature, the district court dismissed the motion without prejudice. Sutton then sought
reconsideration of the district court’s decision, arguing that because his § 2255 motion dealt
with an issue resolved in the direct appeal and unaffected by his resentencing, the pending
appeal from resentencing was irrelevant. The district court denied Sutton’s motion. Sutton
then moved once again for reconsideration, arguing that he had presented “extraordinary
circumstances” that warranted overlooking the general rule against entertaining § 2255
motions while a direct appeal is pending. Using the prison mailbox rule, Sutton filed his
motion 29 days after the district court entered its original judgment. The district court thus
treated it as a 60(b) motion and denied it because it did not raise grounds warranting relief
under Rule 60(b).
Sutton appeals. He reiterates his argument that his § 2255 motion, which attacks the
district court’s loss calculation at his original sentencing, presents “extraordinary
circumstances” and so is amenable to consideration while his appeal is still pending. He
claims that this argument warrants relief from judgment under Rule 60(b) and so the district
court abused its discretion when it denied his motion. We disagree. Sutton’s claim of
“extraordinary circumstances” hinges on his belief that he should be able to pursue his
§ 2255 motion because he is seeking relief from the district court’s loss calculation at his
original sentencing and his current pending appeal addresses the distinct issue of a victim
adjustment. Sutton’s belief that this particular set of facts creates “extraordinary
circumstances” is a claim that the district court committed a legal error by dismissing his
§ 2255 motion without prejudice—i.e., that the district court erred by failing to acknowledge
the existence of so‐called “extraordinary circumstances.” As the district court recognized,
such a legal argument does not provide grounds for relief from judgment under Rule 60(b).
See Fed. R. Civ. P. 60(b)(1) (listing grounds for relief from judgment); Cash v. Ill. Div. of
Mental Health,
209 F.3d 695, 697 (7th Cir. 2000) (Rule 60(b) not intended to correct “mere
legal blunders”). The district court did not abuse its considerable discretion in denying
Sutton’s Rule 60(b) motion. See Eskridge v. Cook County,
577 F.3d 806, 809 (7th Cir. 2009)
(referencing “extremely deferential” abuse of discretion standard applicable to review of
Rule 60(b) denials) (internal quotations omitted).
AFFIRMED.
