United States of America v. Jason Foster

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2699
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON FOSTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 772—Virginia M. Kendall, Judge.
SUBMITTED JANUARY 18, 2013—DECIDED FEBRUARY 8, 2013
Before EASTERBROOK, Chief Judge, and KANNE and
WOOD, Circuit Judges.
EASTERBROOK, Chief Judge. In 2008 Jason Foster
pleaded guilty to distributing more than 50 grams of
crack cocaine and was sentenced to 130 months’ imprison-
ment. 21 U.S.C. §841(a)(1). We dismissed his appeal as
frivolous after his lawyer filed an Anders brief. United
States v. Foster, No. 08-4121 (7th Cir. Nov. 17, 2009)
(nonprecedential disposition). Two years later, after

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2 No. 12-2699
the Sentencing Commission reduced the Guideline
ranges for crack-cocaine offenses and made these
changes retroactive, Foster filed a motion under 18 U.S.C.
§3582(c)(2) seeking a lower sentence. The district court
cut his sentence to 120 months but held that it lacks
authority to reduce it below the statutory minimum
that was in effect when Foster committed his crime.
2012 U.S. Dist. LEXIS 98685 (N.D. Ill. July 9, 2012). Foster
contends in this court that the Fair Sentencing Act of
2010, discussed in Dorsey v. United States, 132 S. Ct. 2321
(2012), is fully retroactive, and that the district judge
therefore could have reduced his sentence to 60 months.
Before filing an opening brief on Foster’s behalf,
attorney John Thomas Moran, Jr., asked the court to
appoint him as Foster’s counsel. The motion did not
cite any authority—in particular, did not contend that
appointment is authorized by the Criminal Justice
Act, 18 U.S.C. §3006A—and we directed Moran to file a
memorandum identifying the authority for a court to
appoint counsel at public expense to prosecute a motion
in the district court, or an appeal, under §3582(c)(2).
Moran replied that the court has “inherent power.” That
won’t do. The Constitution provides that “[n]o Money
shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law” (Art. I §9 cl. 7).
The Criminal Justice Act does not supply the neces-
sary permission to pay a lawyer from the public fisc. It
says that a court must appoint counsel for an indigent
criminal defendant when the sixth amendment so
requires, see §3006A(a)(1)(H), and may appoint counsel

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No. 12-2699 3
to pursue relief under 28 U.S.C. §§ 2241, 2254, or 2255, see
§3006A(a)(2)(B), but neither subparagraph applies to
a motion under §3582. It is not part of a criminal pros-
ecution or a form of collateral attack, so prisoners who
seek lower sentences following retroactive changes to
the Guidelines do not receive counsel at public expense.
United States v. Forman, 553 F.3d 585, 590 (7th Cir. 2009).
Moran has not offered us any reason to overrule that
decision. The motion for appointment of counsel is denied.
Perhaps Moran would be willing to represent Foster
pro bono, without prospect of compensation, but we
need not ask him to do so. The appeal has no chance
of success.
The premise of Foster’s argument is that a sentence
reduction under §3582 is a form of resentencing, at
which the district judge must apply any intervening
legal change. Yet Dillon v. United States, 130 S. Ct. 2683
(2010), holds that a proceeding under §3582 is limited
to the application of changes in the Guidelines. See also
U.S.S.G. §1B1.10(a)(3). That is why the district judge
concluded that she could cut Foster’s sentence to
120 months but no further.
Dorsey holds that persons sentenced on or after
August 3, 2010, receive the benefit of the lower mini-
mum and maximum sentences specified in the Fair Sen-
tencing Act of 2010. Foster was sentenced in 2008, and
as a proceeding under §3582 is not a full resentencing
he is covered by the pre-2010 version of the cocaine
statutes. So we held in United States v. Robinson, 697 F.3d
443 (7th Cir. 2012). Accord, United States v. Berry, 701 F.3d

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4 No. 12-2699
374 (11th Cir. 2012). At least six other circuits have
agreed in nonprecedential decisions issued after Dorsey.
No court of appeals has held otherwise.
The judgment of the district court is summarily affirmed.
2-8-13

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