United States v. Eddie Bell , 826 F.3d 378 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2670
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDDIE BELL,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:04-cr-00495-4 — Rebecca R. Pallmeyer, Judge.
____________________
SUBMITTED MAY 20, 2016 ∗ — DECIDED JUNE 10, 2016
____________________
Before RIPPLE, KANNE, and SYKES, Circuit Judges.
PER CURIAM. This case comes to us in a unique procedural
posture. Eddie Bell was convicted of conspiring to distribute
∗ This successive appeal has been sent to the original panel under Operat-
ing Procedure 6(b). After examining the briefs and record, we have con-
cluded that oral argument is unnecessary. Thus, the appeal is submitted
on the briefs and record. See FED. R. APP. P. 34(a)(2)(C).
2 No. 15-2670
crack cocaine and of using a communications facility to com-
mit 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 re-
plying 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 re-
view of that reply, we conclude that Mr. Bell’s submission of-
fers no reason for us to revise his sentence. We therefore af-
firm the judgment of the district court.
Because the history of this case is important to the resolu-
tion of the situation before us, we set forth that history in some
detail. Mr. Bell, a member of a broad drug distribution con-
spiracy in Chicago, was convicted of conspiring to distribute
crack cocaine and of using a communications facility to com-
mit 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 resen-
tence 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) (par-
allel 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).
On remand, the district court said that it did not wish to
resentence Mr. Bell. The court first explained that Mr. Bell re-
ceived the benefit of the 2007 amendment to the sentencing
No. 15-2670 3
guidelines because he was sentenced after it went into effect.
Next, the district court advised that, because of Mr. Bell’s ex-
tensive criminal history and attempts to diminish that history
during the original sentencing hearing, “[u]nder no circum-
stances would a sentence shorter than 300 months be appro-
priate.” 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 dis-
missed 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).
Mr. 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 coun-
sel 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 perfor-
mance, 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 dock-
eted as this appeal.
4 No. 15-2670
The 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 crim-
inal 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 oc-
curred 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 re-
flect 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.
The 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 origi-
nal 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. 1995).
We 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
No. 15-2670 5
mandamus as a motion to recall a mandate). Upon examina-
tion 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.
Mr. 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 ap-
peal “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 retroac-
tive amendment to the sentencing guidelines involving a two-
level reduction was not ground for a remand on direct ap-
peal). 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.
6 No. 15-2670
Accordingly, in light of the district court’s action, we recall
our original mandate, consider Mr. Bell’s submission, and af-
firm once again our judgment in his direct appeal.
It is so ordered.