# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted March 18 , 2016 * Decided April 5 , 2016

Before

WILLIAM J. BAUER , Circuit Judge

FRANK H. EASTERBROOK , Circuit Judge

DAVID F. HAMILTON , Circuit Judge

No s

. 15

- 2 153 and 15

- 2154

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v

.
GIOVANNI COLLAZO

- SANTIAGO , Defendant

- Appellant

. Appeal s from the United States District Court for the Western District of Wisconsin

.

Nos. 3:12

- cr
- 000 41

- wmc and 3:12

- cr
- 00136

- wmc
William M. Conley, Chief Judge

.
O R D E R

Giovanni Collazo

- Santiago, a federal prisoner, is serving concurrent sentences in two cases, one for a drug conviction and the other for a firearm conviction . He sought and received sentence reductions in both cases under 18 U.S.C. § 3582(c)(2) . B ut the district court later increased the sentence in the drug case , partially erasing the reduction

* After examining the briefs and record, we have concluded that oral argument is unnecessary. Thus the appeal is submitted on the brief s and record. See F ED

. R. A PP

. P. 34(a)(2)(C)

. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No s

. 15

- 2153 and 15

- 2154 Page 2

it had granted earlier

. Because the district court lacked authority to erase th at sentence reduction , w e vacate in part and remand.
The convictions originated i n separate cases

. Collazo

- Santiago pleaded g uilty to possessing cocaine with i ntent to distribute, 21 U .S.C. § 841(a)(1) , and separately pleaded guilty to possessing a firearm as a felon , 18 U.S.C. § 922(g)(1)

. The drug and firearm cases were consolidated for sentencing . A fter grouping the t wo convi ctions under U.S.S.G. § 3D1.4 , the district court calcula ted a combined offense level of 28, a criminal

- history category of II, and a resulting guidelines imprisonment range of 87 to 108 months. The court sentenced Collazo

- Santiago to 90 months’ imprisonme nt in each

case , to be served concurrently.

A mendment 782 to the U.S. Sentencing Guidelines led to sentence reductions in both the drug and the firearm cases. The first reduction occurred in the drug case. Because t he a mendment lowered Collazo

- Santiago’s base offense level for the quantity of drugs he possessed , s ee U.S.S.G. § 1B 1.10(d); U.S.S.G. supp. to app. C, amends. 782, 788 (2014) , Collazo

- Santiago ’s counsel and the government jointly requested a sentence reduction to 70 months in the drug case

. See § 3582(c)(2). Following th at request , the district court reduced the drug sentence to 70 months a nd directed that the sentence continue to run concurrently with the sentence on the firearm conviction , which was still 90 months

.
The second sentence reduction occurred the following month when Collazo

- Santiago ’s counsel and the gov ernment jointly requested 78

- month concurrent sentences i n both c ases

. The firearm sentence wa s eligible for a reduction under Amendment 782 because that conviction was grouped with the drug conviction under § 3D1.4 and was therefore “based on” a guideline range that was subsequently lowered. See § 3582(c)(2); Freeman v. United States , 131 S. Ct. 2685, 2695 (2011) (Sotomayor, J., concurring) (controlling op inion in 4

– 1

– 4 decision). The district court granted t his request and adjusted both sentences to 78 months on March 11 , 2015

— more than a month after it had reduced the drug sentence to 70 month s

. Within the two

- week time frame that Collazo

- Santiago had to appeal , F ED

. R. A PP

. P

. 4(b)(1)(A), he mo ved for reconsideration in both cases

. See United States v. Redd , 630 F.3d 649, 650 (7th Cir. 2011). He asked the district court to vacate the 78

- month concurrent sentences and replace them with 70

- month concurrent sentence s

. The district court denied th at motion , and Collazo

- Santiago appeal s th is ruling

.No s

. 15

- 2153 and 15

- 2154 Page 3

In this court , Collazo

- Santiago maintains that his sentence in both cases should be reduced to 70 month s. He is only half right. T he government rightly concedes that the order of March 11 revising the 70

- month sentence to 78 month s in the drug case must be vacated and the 70

- month sentenc e reinstated. “Other than a correction on appeal

. . . the only source of authority to fix a substantive error in redu cing a sentence under § 3582(c)(2) is Rule 35(a), which permits action only within 14 days.” United States v. Newman , 794 F.3d 784, 786 (7th C ir. 2015) ; s ee F ED

. R. C RIM

. P. 35(a); United States v. Townsend , 762 F.3d 641, 645 (7th Cir. 2014)

. Once t he dist rict court had granted the § 3582(c)(2) motion in the drug case and reduced Collazo

- Santiago ’s sentence to 70 months, it had no authority to raise th at sentence to 78 months on March 11

— after the 14

- day limit had expired. We therefore vacate the ord er modifying th e drug

- case sentence to 78 months and reinstate the 70

- month sentence in th at case

. See Newman , 794 F.3d at 786

– 87.

In the firearm case, however, we affirm the 78

- month concurrent sentence. T he district court imposed that sentence in response to Collazo

- Santiago’s and the government’s joint request under § 3582 (c)(2) for a sentence reduction in the firearm

case

. Unlike in the drug case, the district court was not revising an earlier § 3582(c)(2) ruling , let alone doin g so out of time. T he 78

- month sentence was the court’s only ruling

on the § 3582(c)(2) motion in th e firearm case

. Furthermore Collazo

- Santiago specifically requested and received a concurrent sentence of 78 months in the firearm case . Therefore he has wa ived any argument that this sentence should be lower. See New York v. Hill , 528 U.S. 110, 1 1 4

– 1 5 (2000) ; United States v. Nichols , 789 F.3d 795, 796 (7 th Cir. 2015)

. W e thus affirm t he order reducing Collazo

- Santia go’s firearm sentence to 78 months

.
One final note. Collazo

- Santiago also argues that the district court should have vacated his firearm conviction because the state felony on which it was based was reduced to a misdemeanor before sentencing . But this argument is inappropriate in a § 3582(c) proceeding , which does not permit a full resentencing , let alone a redetermination of guilt

. See Dillon v. United States , 560 U.S. 817, 831 (2010); White v. United States , 745 F.3d 834, 836 (7th Cir. 2014) (citing U.S.S.G. § 1B1.10(b)(1)).
Accordingly i n Case No. 15

- 2154 , the district court’s sentence of 78 months is VACATED and the case is REMANDED with instructions to reinstate a sentence of 70 months. In Case No. 15

- 2153 , the 78

- month concurrent sentence is AFFIRMED

.