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,

Plaintiff-Appellee,

v.

JEREMIAH S. BERG,

Defendant-Appellant.

Appeal from the United States District 

Court for the Eastern District of 

Wisconsin.

No. 10-CR-207

William C. Griesbach,

Chief Judge.

O R D E R

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).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
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.