JOEL A. SMITHERS, a/k/a Joel A Smithers Defendant - Appellant

The judgment of this court, entered February 2, 2024, takes effect today.

This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure.

After one more motion to continue, one motion by defense counsel to withdraw, and one motion for reconsideration of the denial of the motion to withdraw, J.A. 203, 212–13, 214, 215W, 215Z, 215AA—all of them unsuccessful and none of ...

Please be advised of the following time periods: PETITION FOR WRIT OF CERTIORARI: The time to file a petition for writ of certiorari runs from the date of entry of the judgment sought to be reviewed, and not from the date of issuance of the mandate.

COUNSEL: Vouchers must be submitted within 60 days of entry of judgment or denial of rehearing, whichever is later.

Forms and instructions are also available on the court's web site, www.ca4.uscourts.gov, or from the clerk's office.

BANC: A petition for rehearing must be filed within 14 calendar days after entry of judgment, except that in civil cases in which the United States or its officer or agency is a party, the petition must be filed within 45 days after entry of judgment.

petition for rehearing must contain an introduction stating that, in counsel's judgment, one or more of the following situations exist: (1) a material factual or legal matter was overlooked; (2) a change in the law occurred after submission of the case and was overlooked; (3) the opinion conflicts with a decision of the U.S. Supreme Court, this court, or another court of appeals, and the conflict was not addressed; or (4) the case involves one or more questions of exceptional importance.

Under 28 U.S.C. § 2255 “[a] prisoner in custody ... claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States...may move the court which imposed the sentence to vacate, set aside or correct the sentence.” Section 2255(h)(2) provides “[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain— (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §2255(h)(2); see Hrobowski v. United States, 904 F.3d 566 (7th Cir. 2018)).

The court continued, “[s]o although the increase in the guideline range of which the defendant complains in this case not only postdated his crime but also could have had a significant effect on his sentence, he is not entitled to be resentenced.” Id.

Because Mr. Conrad has not satisfied the exhaustion requirement, the Court need not assess whether he has established an extraordinary and compelling reason warranting a sentence reduction.

Dillon sets forth a two-prong analysis where “[a]t step one, § 3582(c)(2) requires the court to follow the Commission’s instruction in § 1B1.10” to determine eligibility for a sentence reduction.

The amendment allows courts to reduce a sentence for defendants who have no criminal history points and were convicted of an offense that did not involve the criteria listed under § 4C1.1(a)(2)-(10).