                           NONPRECEDENTIAL DISPOSITION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 29, 2019 *
                                      Decided June 11, 2019

                                               Before

                              DIANE P. WOOD, Chief Judge

                              MICHAEL S. KANNE, Circuit Judge

                              DIANE S. SYKES, Circuit Judge



No. 19-1499

UNITED STATES OF AMERICA,                              Appeal from the United States District
     Plaintiff-Appellee,                               Court for the Eastern District of
                                                       Wisconsin.
       v.
                                                       No. 10-CR-207
JEREMIAH S. BERG,
     Defendant-Appellant.                              William C. Griesbach,
                                                       Chief Judge.

                                             ORDER

      This is Jeremiah Berg’s second, successive appeal in this court. In 2011, a jury
convicted him of various drug and firearms charges. The district court sentenced him to
a below-Guidelines sentence of 240 months in prison. We affirmed the conviction and
sentence. United States v. Berg, 714 F.3d 490 (7th Cir. 2013). In 2014, the district court

*After examining the briefs and record, we have concluded that oral argument is unnecessary. Thus, the
appeal is submitted on the briefs and record. See FED. R. APP. P. 34(a)(2).
No. 19-1499                                                                                          Page 2

denied post-conviction relief under 18 U.S.C. § 2255 and we declined to issue a
certificate of appealability. Then in 2016, Berg filed his second appeal, arguing that he
was eligible for a sentence reduction under a retroactive amendment to the Guidelines
(Amendment 782). We determined that he was not eligible for the reduction and
affirmed the district court’s denial of his motion. United States v. Berg, 672 F. App’x 580
(7th Cir. 2016). Not to be deterred, Berg now files a third appeal seeking to reduce his
sentence under Amendment 599 to the Guidelines. Because the district court correctly
determined that the Amendment does not retroactively apply to Berg, we affirm.

        18 U.S.C. § 3582(c)(2) permits us to reduce the sentence of a defendant “who has
been sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” Berg’s appeal identifies
what he believes to have been an error in his 2012 sentence by focusing on particular
language in U.S.S.G. § 2K2.4. That language was inserted by Amendment 599 and
became effective in 2001. U.S.S.G. Supp. to App. C., Amend. 599 (2000); see also United
States v. Foster, 902 F.3d 654, 658–60 (7th Cir. 2018). And that’s where Berg’s case falters:
the statute permits us to revise a sentence that is “subsequently … lowered by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added); see also Sarah E.
Welch, Comment, Reviewing Leniency: Appealability of 18 USC § 3582(c)(2) Sentence
Modification Motions, 85 U. Chi. L. Rev. 1269, 1274–77 (2018). A 2001 amendment to the
Guidelines has no effect on a 2012 sentence. While Berg may have had a good argument
that he should have received the benefit of the amendment, he should have raised it on
direct appeal in 2013. Although Foster changed our interpretation of § 2K2.4 last year,
we are not the Sentencing Commission, “which has not adopted a retroactive
amendment that would have reduced [Berg’s] imprisonment range determined at his
sentencing hearing in [2012].” United States v. Bailey, 777 F.3d 904, 905 (7th Cir. 2015). 1

       “A federal court generally ‘may not modify a term of imprisonment once it has
been imposed.’” Dillon v. United States, 560 U.S. 817, 819 (2010) (quoting 18 U.S.C.
§ 3582(c)). The statute is “a narrow exception to the rule of finality,” Dillion, 560 U.S. at
827, and it does not authorize us to correct Berg’s sentence. For those reasons, we
AFFIRM the district court’s order.

1
  Berg also asks us to correct his sentence under 18 U.S.C. § 3742(a)(2) as the result of “an incorrect
application of the sentencing guidelines,” by way of the jurisdictional grant contained in 18 U.S.C.
§ 3582(c)(1)(B) (“[T]he court may modify an imposed term of imprisonment to the extent otherwise
expressly permitted by statute.”). But Berg has not obtained “a successful direct appeal under 18 U.S.C.
§ 3742(f), (g), or a collateral attack under 28 U.S.C. § 2255” and is therefore ineligible for relief under
§ 3582(c)(1)(B). Bailey, 777 F.3d at 906.
