# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 24, 2010

Decided January 5, 2011

Before

RICHARD D. CUDAHY, Circuit Judge

JOHN L. COFFEY, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 10

‐ 2838

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

EUGENE A. FISCHER,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 4:87

‐ CR

‐ 40070

‐ JPG

‐ 4

J. Phil Gilbert,

Judge

.

O R D E R

In 1988, Eugene A. Fischer was convicted of two offenses: (1) engaging in a

continuing criminal enterprise (CCE) involving the importation of a massive amount of

marijuana into the United States and (2) conspiring to distribute that marijuana. After the

Supreme Court issued its decision in Rutledge v. United States

, 517 U.S. 292 (1996), the

district court vacated Fischer’s conspiracy conviction, since Rutledge required courts to

consider conspiracy to be a lesser included offense of a CCE violation. In the years

following the district court’s decision to vacate his conspiracy conviction, Fischer has filed a

litany of pro se motions challenging the legitimacy of his CCE conviction and the district

court’s decision to vacate his conspiracy conviction instead of his CCE conviction. While NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 2838 Page 2

the persistence with which Fischer has sought relief is understandable–Fischer faces a life

sentence under the CCE conviction and only a 35

‐ year term of imprisonment under the

conspiracy conviction–his continual refusal to comply with our procedural rules has caused

the majority of his appeals to be dismissed out of hand. The motion underlying Fischer’s

current appeal is yet another example of him attempting to skirt our rules.

On June 28, 2010, Fischer filed a motion–titled “Rule 35 Motion for Correction or

Reduction of Sentence”–in the District Court for the Northern District of Illinois. In this

motion, Fischer once again requested that the district court reverse his conviction for acting

as a principal administrator in a continuing criminal enterprise of importing and

distributing marijuana, and reinstate the conspiracy conviction that the court had vacated.

He argued that subsequent precedent–chiefly that set forth in Richardson v. United States

, 526, U.S. 813 (1998) and Hawkins v. United States

, 2006 U.S. Dist. LEXIS 76439 (S.D. Ill.

2006)–provided grounds for revisiting his district court’s prior decision.

On July 27, 2010, the district court dismissed Fischer’s motion. It held that Fischer’s

motion was not actually a Rule 35 motion, as Rule 35 only provides a vehicle for challenging

the propriety of a sentence and not the conviction underlying the sentence. The court

interpreted Fischer’s motion as an attempt to vacate, set aside or correct his CCE sentence

and stated that 28 U.S.C. § 2255 was the only procedural means by which Fischer could seek

such relief. After construing Fischer’s filing as a 28 U.S.C. § 2255 motion, the court

dismissed it for lack of jurisdiction, finding that Fischer’s motion constituted a successive

petition that required certification by the Seventh Circuit prior to being heard by the district

court.

The district court’s determination that it lacked jurisdiction over Fischer’s motion

was correct. Despite Fischer’s attempts to recharacterize the relief sought in his initial

motion, it is clear upon review of that document that it asks the district court to set aside

Fischer’s CCE conviction. As we held when considering one of Fischer’s prior appeals, “the

narrow function of Rule 35 is to permit correction of an illegal sentence

, not to reexamine

errors occurring at the trial or other proceedings prior to the imposition of sentence.” United

States v. Fischer

, 205 F.3d 967, 971

‐ 72 (7th Cir. 2000). Hence, it was proper for the district

court to view Fischer’s motion as a 28 U.S.C. § 2255 motion. Melton v. United States

, 359 F.3d

855, 856

‐ 57 (7th Cir. 2004). Since Fischer has filed numerous § 2255 motions previously, he

is required to obtain certification from this court prior to filing a § 2255 motion in the district

court. See 28 U.S.C. § 2244(b)(3)(A); United States v. Carraway

, 478 F.3d 845, 849 (7th Cir.

2007). Because Fischer’s motion was not certified by this court, it was proper for the district

court to determine that it lacked jurisdiction over the motion.

For the foregoing reasons, the decision of the district court is AFFIRMED.