                                NONPRECEDENTIAL DISPOSITION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 March 13, 2020*
                                     Decided June 23, 2020



                                              Before

                            FRANK H. EASTERBROOK, Circuit Judge

                            ILANA DIAMOND ROVNER, Circuit Judge

                            AMY C. BARRETT, Circuit Judge



No. 19-3012                                                     Appeal from the United
                                                                States District Court for the
UNITED STATES OF AMERICA,
                                                                Central District of Illinois.
      Plaintiff-Appellee,

               v.                                               No. 07-cr-20016-JES-DGB
                                                                James E. Shadid, Judge.
TONY C. RUTHERFORD,
      Defendant-Appellant.


                                               Order

    In 2008 Tony Rutherford pleaded guilty to several drug crimes and was sentenced to
a total of 300 months’ imprisonment. In 2018 he asked the judge to reduce his sentence
under the §404(b) of the First Step Act of 2018, Pub. L. 115-391, which permits a court to
proceed as if sections 2 or 3 of the Fair Sentencing Act of 2010 had been in effect at the
time of the original sentencing. Section 404(c) of the 2018 Act adds that a reduction is


   * After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 19-3012                                                                           Page 2

never mandatory. (“Nothing in this section shall be construed to require a court to re-
duce any sentence pursuant to this section.”) One of Rutherford’s 2008 convictions car-
ried a statutory minimum sentence that had been reduced by the 2010 Act, and he asked
the judge for the benefit of that reduction.

    This was not Rutherford’s first request for a lower sentence. In 2015 he invoked
Amendment 782 to the Sentencing Guidelines, which lowered the base offense level for
many drug offenses. The district court cut Rutherford’s time to 240 months but was un-
able to go below the 20-year minimum for one crack-cocaine conviction. This is the sen-
tence that Rutherford asked the judge to reduce in 2018. But the judge said no, observ-
ing that the original 300-month total was within the range agreed by the parties in the
2008 plea bargain and that Rutherford has already received the benefit of one reduction
via a Guideline that implemented the 2010 Act. Applying the factors under 18 U.S.C.
§3553(a), the judge concluded that 240 months remains the appropriate sentence.

    On the day his notice of appeal was due (after an extension of time), Rutherford
asked the judge to reconsider the order denying his motion. The court denied that mo-
tion, and Rutherford filed a notice of appeal within 14 days. But the United States asks
us to dismiss that appeal as untimely. Relying on United States v. Townsend, 762 F.3d 641
(7th Cir. 2014), the prosecutor maintains that motions to reconsider in criminal cases—at
least, motions to reconsider sentences—are ineffectual and do not extend the time for
appeal under Fed. R. App. P. 4(b).

   It is right to say that the Rules of Criminal Procedure lack any parallel to the omni-
bus motions to reconsider authorized by Fed. R. Civ. P. 59. Still, the Supreme Court has
held repeatedly that motions to reconsider in criminal cases extend the time for appeal.
See, e.g., United States v. Healy, 376 U.S. 75 (1964); United States v. Dieter, 429 U.S. 6
(1976); United States v. Ibarra, 502 U.S. 1 (1991). We recapped the effects of those cases in
United States v. Rollins, 607 F.3d 500 (7th Cir. 2010), concluding that they stand for a rule
that all motions to reconsider appealable orders in criminal cases extend the time for
appeal until they have been resolved by the district court.

    Townsend did not purport to overrule Rollins, and of course a court of appeals cannot
depart from the Supreme Court’s decisions in Healy, Dieter, or Ibarra. Townsend address-
es a specific issue: Whether there is a general opportunity to reconsider a criminal sen-
tence within two weeks of its imposition. Our opinion in Townsend observes that sen-
tence modification during this window falls within Fed. R. Crim. P. 35(a), no matter its
caption. And Appellate Rule 4(b)(5) tells us that a motion or request under Criminal
Rule 35 does not affect the time for appeal. A specific rule of procedure, adopted under
No. 19-3012                                                                           Page 3

the Rules Enabling Act, supersedes common-law doctrines of the kind reflected in Hea-
ly, Dieter, Ibarra, and Rollins.

    A motion under the First Step Act of 2018 is not governed by Criminal Rule 35. It fol-
lows that Appellate Rule 4(b)(5) does not come into play. But there is one further poten-
tial problem. Section 404(c) of the First Step Act forbids a successive motion, “if a previ-
ous motion made under this section to reduce the sentence was … denied after a com-
plete review of the motion on the merits.” If a motion to reconsider is treated as a for-
bidden successive motion, then it falls outside the norm of Healy and successors just as
motions governed by Rule 35 do. The United States contends that a motion to reconsid-
er should be treated as a successive motion for a lower sentence.

    The ban on successive motions under the First Step Act is parallel to the limit on
successive motions for collateral review under 28 U.S.C. §2255. Some courts of appeals
held that a motion for reconsideration in a §2255 proceeding is in effect a new collateral
attack, and that such a motion therefore does not extend the time for appeal in the first
collateral attack. But Banister v. Davis, No. 18–6943 (U.S. June 1, 2020), rejects that char-
acterization and holds that a motion for reconsideration is just an ordinary filing de-
signed to lead to the proper outcome in the original collateral proceeding. The Justices
characterized the motion as “a limited continuation of the original proceeding—indeed,
a part of producing the final judgment granting or denying habeas relief.” Slip op. 15.
The United States filed an amicus brief in Banister making, about §2255, almost exactly
the argument it advances here about §404(c). The Supreme Court’s rationale for reject-
ing the second-or-successive characterization of a motion to reconsider in Banister
means that we should reject the second-or-successive characterization here.

    Section 404(c) says that the prisoner must be satisfied with one “complete review of
the motion on the merits.” Under the reasoning of Banister, a motion for reconsideration
is part of that “complete review … on the merits” rather than a second or successive mo-
tion. And from this it follows, as Banister also holds, that the motion suspends the finali-
ty of the decision until the district court has acted.

   It may be, as the United States contends, that Rutherford’s motion to reconsider was
doomed to failure, but the effect of a motion on appellate jurisdiction does not depend
on its strength. Even a frivolous motion to reconsider, filed while the time for appeal is
running, postpones the judgment’s finality until the district judge has acted.

   Thus we have jurisdiction, but this is as far as Rutherford gets, because the district
court did not abuse its discretion when leaving his sentence at 240 months.
No. 19-3012                                                                         Page 4

    Rutherford contends that the district judge erred by giving weight to the prosecu-
tor’s arguments that he had planned to escape from prison and that he should be penal-
ized for violating his agreement (part of the plea bargain) not to appeal his conviction or
sentence. Yet the district judge did not deny his motion on either basis. Instead the
judge concluded that the evidence of Rutherford’s conduct (and perhaps rehabilitation)
in prison did not justify benefits beyond the 60-month reduction he received in 2015.
The judge reconsidered the §3553(a) factors. Appellate review is deferential. Ruther-
ford’s disagreement with the result does not show that the judge’s decision was unrea-
sonable.

                                                                                 AFFIRMED
No. 19-3012                                                                      Page 5



       BARRETT, Circuit Judge, dissenting. In my view, Rutherford’s notice of
appeal was effective to bring up review of only one of the district court’s two
decisions: its denial of Rutherford’s motion to reconsider, not its decision on the
merits of Rutherford’s motion to modify his sentence.

       Under the Sentencing Reform Act, a district court is only authorized to
“modify a term of imprisonment once it has been imposed” in three limited
circumstances. Just one is relevant here: “the court may modify an imposed term
of imprisonment to the extent otherwise expressly permitted by statute or by
Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B).
The First Step Act expressly permitted Rutherford to move for a reduced
sentence and permitted the court to modify his sentence in response.

       As the panel explains, the district court granted that motion in part. And
Rutherford, dissatisfied with the district court’s decision, moved for
reconsideration of the new sentence. The majority concludes that Rutherford’s
motion for reconsideration qualified as a common-law motion that extended the
time that Rutherford had to appeal his sentence. That would mean that his notice
of appeal was timely filed for purposes of both the underlying resentencing
decision and the district court’s refusal to reconsider the sentence. I see things
differently.

       To decide whether the motion for reconsideration extended the time to file
a notice of appeal, we have to determine what authorized Rutherford to make
that motion. In United States v. Townsend, we held that the Sentencing Reform Act
abrogated district courts’ common-law authority to entertain motions to
reconsider their sentencing decisions. 762 F.3d 641, 646 (7th Cir. 2014). So
common-law authority cannot support Rutherford’s motion for reconsideration.
Under Townsend’s interpretation of § 3582(c)(1)(B), Rutherford could only move
for reconsideration of his sentence if a statute or Rule 35 allowed it.

       The First Step Act expressly authorizes a district court to modify a
sentence in keeping with the Act’s removal of enhanced sentencing for some
prior drug convictions. But it does not expressly authorize a motion for
reconsideration of the modified sentence.1 Thus, Rutherford could seek


       1The government argues that § 404(c) of the Act affirmatively precludes such a
motion by providing that “[n]o court shall entertain a motion made under this section to
reduce a sentence … if a previous motion made under this section to reduce the sentence
No. 19-3012                                                                        Page 6

reconsideration only through Rule 35—and a Rule 35 motion doesn’t extend the
time to take an appeal. FED. R. APP. P. 4(b)(5). Because Rutherford’s Rule 35
motion didn’t stop the clock, the deadline for appealing the sentence expired
before Rutherford filed his notice of appeal. Since Rutherford’s notice of appeal
was untimely as to the underlying resentencing decision, we lack the authority to
review the resentencing itself.

        The majority disagrees because it doesn’t think that Rutherford was
limited to Rule 35. Relying on United States v. Ibarra, 502 U.S. 1 (1991), and United
States v. Rollins, 607 F.3d 500 (7th Cir. 2010), it characterizes Rutherford’s motion
for reconsideration as a common-law motion that tolled the time for appeal. But
Townsend distinguishes Ibarra and Rollins on the ground that those cases allowed
common-law reconsideration motions on issues related to convictions rather
than sentences. 762 F.3d at 646. Townsend squarely holds that sentencing is
different—in that context, the Sentencing Reform Act overrides the common-law
power that district courts otherwise possess. This is a sentencing case, so
Townsend, not Ibarra or Rollins, controls.

        While we cannot review the court’s resentencing decision, we do have
authority to review its refusal to reconsider that decision—Rutherford’s appeal
of the latter decision was timely. This is cold comfort for Rutherford, though,
because the appeal fails on the merits. Rule 35(a) allows a defendant to seek
correction of only “arithmetical, technical, or other clear error,” and Rutherford
instead repeated the same arguments from his initial motion.

       In sum, I think the majority is wrong to assume the authority to review
Rutherford’s sentence. This is a nonprecedential decision, though, so the error is
not set in stone. In a future case, we should correct it.




was, after the date of enactment of this Act, denied after a complete review of the motion
on the merits.” First Step Act of 2018, Pub. L. No. 115-391, § 404(c), 132 Stat. 5194, 5222
(codified at 21 U.S.C. § 841 note). I agree with the majority that § 404(c) is analogous to
the prohibition on “second or successive” motions in habeas litigation, which means that
it does not bar a motion to reconsider a sentence just imposed. See Banister v. Davis, 140
S. Ct. 1698 (2020).
