United States of America v. Danny L. Dixon

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 11, 2023 *
Decided July 17, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 22-3281
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANNY L. DIXON,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 03-cr-20027
James E. Shadid,
Judge.
O R D E R
Danny Dixon, a federal prisoner, moved for a reduced sentence under § 404(b) of
the First Step Act, and the district judge granted some relief but decreased the sentence
by less than Dixon had requested. Dixon did not appeal. Three years later he filed a
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-3281 Page 2
motion to reconsider, which the judge denied. Dixon appeals, but no authority would
have permitted the further alteration of his sentence so we affirm.
Dixon pleaded guilty in 2003 to two counts of distributing crack cocaine.
21 U.S.C. § 841(a)(1). At the time, the Sentencing Guidelines produced a range of
360 months to life in prison, and the sentencing judge imposed 360 months. Then, in
2012 the judge reduced the sentence to 348 months in prison based on a retroactive
amendment to the Guidelines. See 18 U.S.C. § 3582(c)(2).
In 2019 Dixon sought another sentence reduction under § 404(b) of the First Step
Act of 2018, Pub. L. 115-391, 132 Stat. 5194. The Act made retroactive the lower penalties
effected through the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat. 2372, to
reduce the disparities between sentences for crack-cocaine and powder-cocaine
offenses. See Terry v. United States, 141 S. Ct. 1858, 1860 (2021). Dixon and the
government agreed that he was eligible for relief, and the probation office calculated
that his new Guidelines range would be 262 to 327 months in prison. Dixon asked to be
resentenced to time served, for a total term of less than 200 months in prison. The
government argued for a sentence of at least 262 months for reasons including that
Dixon’s “significant” disciplinary history in prison showed that he “is not anywhere
near ready for release.”
On August 23, 2019, the judge partially granted Dixon’s motion and reduced his
sentence to 300 months on each count, running concurrently. The judge determined that
Dixon was eligible for a reduction, recognized the amended Guidelines range, and
explained that a sentence of time served was inappropriate for reasons including
Dixon’s repeated disciplinary infractions. Dixon did not appeal this decision within
14 days. See FED. R. A PP. P. 4(b)(1)(A)(i). But eight months later he moved to reconsider,
arguing that his amended sentence was excessive because of an inaccurate drug
quantity with respect to one count. (He had withdrawn his challenge to this amount
before sentencing.) The judge denied this motion. Dixon again did not appeal.
On December 8, 2022—after an intervening attempt at a successive motion under
28 U.S.C. § 2255—Dixon filed another motion to reconsider the partial denial of his
request for a sentencing reduction under § 404(b), again based on drug quantity. The
judge denied the motion on the merits, and Dixon has finally appealed. He repeats his
argument that his reduced, 300-month sentence exceeds what is permitted based on
what he considers the accurate drug quantity and applicable statutory maximum. But
we do not reach the merits of his argument because his untimely second motion to

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No. 22-3281 Page 3
reconsider is effectively a successive motion for relief under § 404(b), and the First Step
Act bars consideration of such motions.
Once the judge granted Dixon’s § 404(b) motion in part, Dixon had 14 days to
appeal or move to reconsider his sentence reduction. See R. 4(b)(1)(A). A timely motion
to reconsider continues the underlying proceeding. United States v. Hible, 13 F.4th 647,
649, 651 (7th Cir. 2021) (permitting timely motions to reconsider § 404(b) decisions). We
have yet to address the effect of an untimely motion to reconsider a ruling under
§ 404(b), but § 404(c) of the First Step Act and our interpretation of related statutes leave
little doubt that such motions cannot be granted.
A judge can modify a final criminal sentence only in limited circumstances.
18 U.S.C. § 3582(c). Courts consistently apply this principle, even when it prevents the
correction of an otherwise unlawful sentence. See Romandine v. United States, 206 F.3d
731, 737 (7th Cir. 2000). The First Step Act is one “vehicle” that allows the modification
of a final sentence. United States v. Sutton, 962 F.3d 979, 984 (7th Cir. 2020). But nothing
in the Act allows the repeated use of this vehicle to secure a sentence reduction. Quite
the contrary: Section 404(c) expressly forbids subsequent motions after one “complete
review of the motion on the merits.” 132 Stat. 5222. Dixon received a full review when
the judge reduced his sentence to 300 months, and Dixon let that decision become final.
He could have extended the review by appealing or filing a motion to reconsider within
14 days. See Hible, 13 F.4th at 651. He took neither step. Instead, he waited eight months
to file a motion to reconsider and more than three years to file a second one.
We have held that a defendant who received a sentencing reduction under
§ 3582(c)(2) and lets the time to appeal “expire without action” cannot use an untimely
motion to reconsider to obtain a new decision or effectively take a belated appeal.
United States v. Redd, 630 F.3d 649, 650–51 (7th Cir. 2011). We see no reason why the
result should be different with a reduction under § 404(b) of the First Step Act, given the
clear mandate of § 404(c). Because it was untimely, Dixon’s second motion to reconsider
did not continue the underlying proceeding on his § 404(b) motion. The sentence was
final, his “complete review” was over, and the motion had no effect.
AFFIRMED

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