United States v. Michele Nelson

448 F. App'x 637

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 10, 2012
• Docket: 11-2923
• Status: Unpublished

Opinion

Order

In 2006 Michele Nelson pleaded guilty to drug crimes, and we dismissed her appeal as frivolous. See United States v. Briesemeister, 273 Fed.Appx. 534 (7th Cir.2008) (nonprecedential disposition). In July 2011 Nelson filed a motion asking the district court to reduce her sentence. The judge understood this motion to be based on a change in the way the Sentencing Guidelines calculate criminal history, and the judge denied it because the Sentencing Commission had not declared the change to have retroactive effect. Changes in the Guidelines apply retroactively only with the Sentencing Commission’s authorization. See 18 U.S.C. § 3582(c)(2).

In this court, Nelson contends that her motion has been misunderstood, and that she seeks to have Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), applied retroactively in a way that would reduce her criminal-history category. See Narvaez v. United States, - F.3d -, 2011 WL 6382106 (7th Cir.2011). But if we understand Nelson’s motion as one under 28 U.S.C. § 2255, rather than under 18 U.S.C. § 3582(c)(2), this does her no good. Prisoners have only one year from the time a conviction becomes final to commence proceedings under § 2255. A new one-year period begins on “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review”. 28 U.S.C. § 2255(f)(3). If Begay is such a decision, then the additional one-year period began on April 16, 2008, and expired more than two years before Nelson filed her motion. Narvaez asked for relief within a year of Begay; Nelson did not.

So whichever way one understands Nelson’s motion — as under § 3582(c)(2), or as under § 2255 — the district court did not err.

AFFIRMED