                            In the

United States Court of Appeals
              For the Seventh Circuit

Nos. 07-1801, 07-2251, 07-2596

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

A RTHIA L AMONT T ANNER,
L ARRY S COTT, and L ANCE FOSTER,
                                          Defendants-Appellants.


            Appeals from the United States District Court
      for the Northern District of Indiana, Hammond Division.
       Nos. 2:04 CR 80-05, 80-11, 80-07—Rudy Lozano, Judge.



    A RGUED A UGUST 5, 2008—D ECIDED S EPTEMBER 12, 2008




 Before P OSNER, C OFFEY, and M ANION, Circuit Judges.
  P OSNER, Circuit Judge. The defendants were convicted of
federal drug and gun crimes, and appeal. Only Foster’s
appeal need be considered; his codefendants’ appeals are
frivolous, as pointed out in the Anders briefs filed by
their lawyers, and are hereby dismissed.
  Foster was given the minimum sentence that Congress
has directed be imposed on a person who, having a
2                            Nos. 07-1801, 07-2251, 07-2596

previous felony drug conviction, distributes crack
cocaine—20 years. 21 U.S.C. § 841(b)(1)(A). He challenges
the district judge’s failure to delay the sentencing hearing
for five months, until the 2007 version of the federal
sentencing guidelines went into effect. Under the version
in effect when Foster was sentenced, a previous sentence
that he had received—a sentence of one year’s probation
for reckless driving—was counted in his criminal
history score. U.S.S.G. § 4A1.2(c)(1). Under the same
provision of the guidelines as revised in 2007, that sen-
tence, because it did not exceed (rather than being at
least) one year, would not have counted. Had he been
sentenced under the later guideline, he would still have
been subject to the 20-year statutory minimum sentence
because of his prior drug conviction, but because he
would have had only one prior conviction in his crim-
inal history he would have been eligible for “safety valve”
relief under 18 U.S.C. § 3553(f). See id., § 3553(f)(1). The
safety-valve provision removes the statutory minimum as
a constraint on the sentencing judge and directs him to
impose the sentence that the sentencing guidelines pre-
scribe, which in Foster’s case would be a sentence of
between 97 and 121 months. See U.S.S.G. §§ 2D1.1(c),
2D1.1(b)(11), Ch. 5, Pt. A. Under the regime of Booker, the
judge is to treat the guidelines as only advisory even in a
safety-valve case. United States v. Quirante, 486 F.3d 1273,
1276 (11th Cir. 2007); United States v. Cardenas-Juarez, 469
F.3d 1331, 1334 (9th Cir. 2006). But he cannot treat as
advisory the guideline provisions that are preconditions
for safety-valve relief, namely 18 U.S.C. §§ 3553(f)(1) and
(4). United States v. Hernandez-Castro, 473 F.3d 1004, 1007
Nos. 07-1801, 07-2251, 07-2596                              3

(9th Cir. 2007); United States v. McKoy, 452 F.3d 234, 239 (3d
Cir. 2006); United States v. Brehm, 442 F.3d 1291, 1300 (11th
Cir. 2006) (per curiam). And it is section 3553(f)(1) that
conditions safety-valve relief on the defendant’s having
no more than one conviction in his criminal history.
   Foster acknowledges that the decision whether to delay
a sentencing hearing is discretionary, but points out that a
discretionary ruling that is infected by material error
cannot stand. The district judge did commit an error; he
thought that because of the statutory minimum sentence
it could make no difference whether the reckless-driving
conviction was included in Foster’s criminal history
score; we have just seen that it could make a difference.
   The government makes a number of arguments for
why we should overlook the judge’s error, but misses the
main one. The decision to grant or deny a continuance (the
conventional term for an interim delay in a litigation) is
a management tool. Morris v. Slappy, 461 U.S. 1, 11-12
(1983); United States v. Tingle, 183 F.3d 719, 723 (7th Cir.
1999); United States v. Correia, 531 F.2d 1095, 1098 (1st Cir.
1976). It can have substantive consequences, as this case
illustrates: the guidelines (and the Sentencing Reform
Act itself) direct the judge to calculate the guidelines
sentence on the basis of the version of the guidelines that
is in force at sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii);
U.S.S.G. § 1B1.11. The judge can usually give a different
sentence (though not in this case), but the required starting
point of his analysis—namely the guidelines range, Gall v.
United States, 128 S.Ct. 586, 596 (2007)—is the range calcu-
lated on the basis of the guidelines in force when sen-
4                            Nos. 07-1801, 07-2251, 07-2596

tence was imposed, not an earlier set of guidelines. United
States v. Wise, 515 F.3d 207, 220 (3d Cir. 2008); United
States v. Vicol, 514 F.3d 559, 561-62 (6th Cir. 2008).
  Sentencing judges can properly grant continuances to
await clarification of the law, e.g., United States v. Brown,
No. 00-CR-939, 2004 WL 1879949, at *1 (N.D. Ill. Aug. 18,
2004), or, what is analytically similar, if an impending
change in law would require modification of a judgment
entered on the basis of the law currently in force. Hallstrom
v. City of Rockford, 157 N.E.2d 23, 25 (Ill. 1959); Lanning
v. Sprague, 227 P.2d 347, 349 (Idaho 1951); Kemp v. Day &
Zimmerman, Inc., 33 N.W.2d 569, 582-85 (Iowa 1948). These
are examples of continuances designed to promote
efficient case management. The only case that Foster
cites for the propriety of a “substantive” continuance,
United States v. Madrigal, 327 F.3d 738 (8th Cir. 2003), does
not support his position (the actual holding of Madrigal is
inconsistent with our decision in United States v. Alvarado,
326 F.3d 857, 862 (7th Cir. 2003), but that is of no
moment in this case). Madrigal is about the propriety of
granting a continuance to allow a defendant more time
to make the proffer required for safety-valve relief (see
18 U.S.C. § 3553(f)(5)) when his earlier failure to do so
was excusable. It has nothing to do with a judge’s wanting
to make a different law apply by postponing sentencing.
  It is improper for a judge to grant (or deny) a continu-
ance for the very purpose of changing the substantive
law applicable to the case. We cannot find a reported
federal appellate decision that addresses the question, but
an unreported one, United States v. Garcia, No. 92-50675,
Nos. 07-1801, 07-2251, 07-2596                             5

1993 WL 263459 (9th Cir. July 13, 1993) (per curiam), notes
that “the opportunity for a better sentence under a new
Amendment to the Guidelines is not a legitimate reason
to request a continuance.” Id. at *1. The court added that
“granting a continuance on this basis would greatly
inconvenience a district court’s ability to impose sen-
tence as defendants would repeatedly seek continuances
and cause delays upon learning of Amendments to the
Guidelines that may benefit the defendant but are yet to
take effect.” Id. And in United States v. Gonzalez-Lerma, 71
F.3d 1537, 1542 (10th Cir. 1995), overruled on other
grounds in United States v. Flowers, 464 F.3d 1127, 1130 n. 1
(10th Cir. 2006), the court said that “we can foresee defen-
dant’s theory [that a continuance can be granted in order
to enable a defendant to take advantage of a foreseeable
change in the law] creating an ominous situation in which
every attorney whose client faces sentencing would
attempt to delay sentencing each time lawmakers debate
a new statute or amendment. This is an outcome that we
cannot allow.” See also United States v. Flores-Ochoa, 139
F.3d 1022, 1024 (5th Cir. 1998).
   Kolman v. Kolman, 58 F.R.D. 632, 633 (W.D. Pa. 1973), is
consistent with Garcia, but another district court decision
is not, though it contains no discussion of the issue. United
States v. Singh, No. 93-CR-931, 1994 WL 510053, at *1
(S.D.N.Y. Sept. 16, 1994), affirmed on unrelated grounds,
No. 94-1699, 1995 WL 595548 (2d Cir. Sept. 21, 1995). In a
few cases, a defendant has argued that his lawyer ren-
dered ineffective assistance by failing to seek a continu-
ance to await the effective date of a more favorable guide-
line and the courts of appeals, while not finding ineffec-
6                             Nos. 07-1801, 07-2251, 07-2596

tive assistance, did not question (nor, for that matter,
confirm) the district court’s authority to grant such a
continuance. United States v. Prince, 110 F.3d 921, 926 (2d
Cir. 1997); United States v. Briceno-Rodriguez, 47 Fed. Appx.
167, 169-70 (3d Cir. 2002); cf. United States v. Ruiz-Gea, 340
F.3d 1181, 1185 (10th Cir. 2003). In two otherwise similar
cases, however, United States v. Flores-Ochoa, supra, and
United States v. Gonzalez-Lerma, supra, the court, as we have
noted, did question the propriety of such a continuance;
and in Prince it appears that the district judge thought
such a continuance improper. 110 F.3d at 926.
  A sentencing judge cannot rightly say, “I do not like the
current guidelines, so I am continuing the sentencing
hearing in the hope and expectation (in this case, the
certainty) that they will change.” Or: “Ordinarily I
would grant a continuance, but I won’t do so in this case
because I prefer the current guidelines to those about to
take effect.” In cases in which the guidelines are purely
advisory, the judge can regard or disregard them
whether or not they are currently in force. That is the
usual case but not the present one, since unless the sen-
tencing was delayed the defendant would be ineligible
for safety-valve relief and would thus be subject to a
statutory sentence floor. But the point is general: the power
to grant or deny a continuance is abused when it is exer-
cised not in order to manage a proceeding efficiently but
in order to change the substantive principles applicable
to a case. That would be like the judge’s trying to change
the effective date of a statute because he liked, or disliked,
how the statute had changed the existing law.
Nos. 07-1801, 07-2251, 07-2596                             7

  Furthermore, the Sentencing Commission, not the
courts, has been given the authority to decide whether to
make a guidelines change prospective or retroactive. The
sentencing judge can shorten the prison term to which
he has sentenced a defendant because the Commission
reduced the sentencing range after sentence was imposed
only if the Commission has issued a policy statement
authorizing such retroactive application of its guidelines
change. 18 U.S.C. § 3582(c)(2), 28 U.S.C. § 994(a)(2)(C). The
Commission has not authorized such application with
respect to the guidelines amendment that Foster wants to
be sentenced under. U.S.S.G. § 1B.10(c). He wants the
district judge to countermand the Commission’s choice by
waiting until a change intended by the Commission to be
prospective has become retroactive by virtue of the
passage of time. That would usurp the authority that
Congress has given the Commission.
  And while a sentencing judge is to use the guidelines in
force at sentencing, when a case is remanded for
resentencing he is to use the guidelines that were in
force at the time of the original sentencing, even if they
have changed in the meantime, 18 U.S.C. § 3742(g)(1). This
is further evidence that judges are not supposed to be
the ones who decide which guideline amendments apply
to old cases.
  Procedural and evidentiary rules generally take effect
when promulgated, with full application to pending as
well as future cases, sometimes with outcome-determina-
tive effect. A judge could not properly delay the beginning
of a trial because he thought a rule about to come into
8                            Nos. 07-1801, 07-2251, 07-2596

effect would make it easier (or harder) for the plaintiff to
prove damages, though he could delay the trial because
the new rule would shorten the trial. It is especially
improper for a judge to delay sentencing because he
wants to give the defendant a lighter (or a heavier) sen-
tence than the current law permits, for “the court must
impose sentence without unnecessary delay.” Fed. R. Crim.
P. 32(b)(1). The judge’s error in thinking that it made
no difference when Foster was sentenced was therefore
harmless, because to grant a continuance on the ground
sought by Foster would have been an abuse of discretion.
  A further wrinkle deserves consideration. A codefendant
of Foster, though convicted on the same day as he, had as
a result of obtaining continuances not yet been sen-
tenced when the new guideline took effect. Had he been
facing the statutory minimum sentence before then,
therefore, he would have been eligible for safety-valve
relief. But there is no indication that he was facing such
a sentence—in fact it appears that he had no criminal
record at all, Andy Grimm, “Ex-Boxer Guilty on Drug
Rap,” Merrillville Post-Tribune, Nov. 7, 2006, p. A1—or
that if he was facing such a sentence the new guideline
would help him.
  But imagine a case in which two defendants are identi-
cally circumstanced, one receives a continuance based
on proper case-management concerns and as a result will
be eligible for safety-valve relief when sentenced and the
other seeks a continuance on the ground that to deny
him such relief would create an irrational disparity in
punishment. Our analysis would not bar the sentencing
Nos. 07-1801, 07-2251, 07-2596                         9

judge from granting a continuance on this ground. For
it would be a matter not of the judge’s preferring the
new guideline to the old one but of his wanting to
avoid creating an arbitrary punishment differential, and
that is a proper consideration for a sentencing judge.
18 U.S.C. § 3553(a)(6). This is not such a case, however,
so the judgment in Foster’s case is
                                              A FFIRMED.




                          9-12-08
