UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) Cause No. 2:16-cr-27

)

ERIC M. DILLON, )

)

Defendant. )

OPINION AND ORDER

Eric Dillon filed a motion to correct his sentence under Federal Rule of Civil

Procedure Rule 60(B)(6). [DE 101.] For the reasons articulated below, this motion is

really a second successive petition under 28 U.S.C. § 2255, so it must be dismissed since

Dillon did not receive a certificate of appealability from the appellate court. 

Background

Back on June 26, 2020, I entered an opinion and order denying Dillon’s motion

under section 2255. [DE 68.] I set out the facts of this case in depth in that order, and

repeat them here for the sake of completeness:

On January 19, 2016, around 3:30 in the morning, Dillon walked into a 7-Eleven

convenience store up the street from the federal building in Hammond. He lurked

around the store for a bit and then left without incident. [DE 53 at 19.] The next

morning, at 4:17 a.m., he walked into the same store brandishing a .22-caliber handgun

with a laser sight. [Id. at 17-21.] He wore a black wig and a black face covering. [Id.;

PSR, DE 33, ¶ 5.] Dillon gestured with his gun toward the cashier, Mr. Unton, and said,

USDC IN/ND case 2:16-cr-00027-PPS-JEM document 108 filed 10/01/24 page 1 of 11
“cash register, right now.” [PSR ¶ 5.] Unton moved towards the register with his

hands up, and Dillon yelled, “open it right now.” [PSR ¶ 5; DE 37 (CD submitted for in

camera review containing footage of the incident).] Unton was at the register for

approximately five seconds before Dillon asked if he had pushed an alert button. [DE

53 at 17-21; DE 37.] Dillon then fired his gun across the counter at Unton multiple

times. [Id.] Dillon hit Unton twice in the chest and fled the store as Unton fell to the

ground. [Id.] Unton ultimately died from the gunshot wounds. 

Dillon was charged with three counts in the indictment: committing a Hobbs Act

robbery in violation of 18 U.S.C. § 1951 (Count One); using a firearm during a Hobbs

Act robbery in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two); and causing a murder

by discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(j)

(Count Three). [DE 1.] The government filed a notice that it would not seek the death

penalty. [DE 19.] Dillon pleaded guilty without the benefit of a plea agreement to

Counts One and Three of the indictment. [DE 24, 26.] Count Two of the indictment was

later dismissed by the government. 

Section 924(c) provides punishment for “any person who, during and in relation

to any crime of violence or drug trafficking crime . . . , uses or carries a firearm, or who,

in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). The

statute sets out a graduated punishment scheme if the firearm was merely possessed (5

year mandatory minimum), brandished (7 years mandatory minimum) or discharged

(10 year mandatory minimum). 18 U.S.C. §§ 924(c)(1)(A)(i),(ii),(iii). Additionally, the

2

USDC IN/ND case 2:16-cr-00027-PPS-JEM document 108 filed 10/01/24 page 2 of 11
sentence for a section 924(c) offense must run consecutive to any other sentence. 18

U.S.C. § 924(c)(1)(D)(ii). Section 924(j) continues the graduated penalty scheme. It

provides that if a person who, in the course of a violation of section 924(c), causes the

death of a person through the use of a firearm, shall either (1) if the killing is a murder,

be punished by death or by imprisonment for any term of years or for life; and (2) if the

killing is manslaughter, be punished as provided in that section. 18 U.S.C. § 924(j). 

The probation department prepared a Presentence Report in anticipation of

sentencing. The PSR concluded that a person convicted of violating section 924(j) must

be sentenced to at least 10 years in prison, which must run consecutively to any other

sentence (like the one for violating the Hobbs Act). It recommended that Dillon’s

sentence incorporate the consecutive sentence for discharging a firearm as provided by

section 924(c)(1)(a)(iii), and did not “group” the counts. [PSR ¶ 80.] The PSR calculated

the final offense levels of 240 months’ imprisonment (which is the statutory maximum)

for the robbery count, and 324-405 months for the section 924(j) count. [Id.]

At sentencing, Dillon’s counsel raised two objections to the PSR. First, he cited to

United States v. Julian, 633 F.3d 1250 (11th Cir. 2011) (the only court of appeals that has

held the sentence under 924(j) could run concurrently to the sentence for the underlying

crime of violence), arguing that I had discretion to impose a concurrent sentence on the

section 924(j) count. [DE 52, Sent. Tr., at 5-12.] Second, Dillon argued that because the

two counts did not have to be imposed consecutively, the two counts should group. [DE

31 at 1.] The government supported probation’s position in the PSR, noting six circuits

3

USDC IN/ND case 2:16-cr-00027-PPS-JEM document 108 filed 10/01/24 page 3 of 11
disagree with Julian. [DE 34 at 2-3.] 

At the sentencing hearing, I recognized that the Seventh Circuit has not ruled on

this issue yet, but found the other circuit courts more persuasive than Julian. [DE 52 at

6-9.] Ultimately, I overruled Dillon’s objection, and found the section 924(j) sentence

had to be consecutive. After resolving this controversy in the case law, I specifically

stated: “I will note that the sentence - - whatever sentence I do give, after I hear from all

of you, I’m likely to not alter - - I’m going to alter the sentence to achieve the result I

think is appropriate, whether it is consecutive or concurrent, and that makes that

decision I just made, I think, somewhat of an academic decision.” [Id. at 9.] 

After hearing from the victim’s family and Dillon, I sentenced Dillon to 240

months on Count One (the Hobbs Act robbery) with a consecutive 270-month term on

Count Three (the section 924(j) violation), resulting in a total sentence of 510 months.

[Id. at 28-35.] There were both aggravating and mitigating circumstances about this

case. I commented that Dillon committed “a ruthless, vicious, completely gratuitous

and unnecessary crime” because there “was no reason to have shot this man, none” and

Mr. Unton seemed like a very kind, gentle, and good man. [Id. at 30.] I stated then, and

I still believe, that the “nature and circumstances of the offense . . . just doesn’t really get

much worse than this.” [Id. at 31.] On the other hand, Dillon did accept responsibility

and not put the family through a trial, he was remorseful, and he suffered from severe

emotional and psychological issues. [Id. at 32-33.] Dillon also had serious issues with

drugs and alcohol. [Id. at 33.] On balance, I found the “aggravating factors are much

4

USDC IN/ND case 2:16-cr-00027-PPS-JEM document 108 filed 10/01/24 page 4 of 11
more egregious here than those mitigating factors that I have spoke[n] to.” [Id. at 34.] 

Right before I announced the sentence, I clarified:

[A]s I alluded to earlier, that even if I’m incorrect in the way I have

calculated the sentencing guidelines or even if I’m incorrect in the

924(j) having to be consecutive to the Hobbs Act robbery

conviction, the sentence that I’m about to announce is precisely the

sentence that I would have arrived at in any event because I think it

is a just sentence irrespective of whether I precisely calculated the

guidelines and, again, irrespective of whether 924(j) has to be

consecutive or concurrent. I view that as, frankly, an academic

exercise, especially under these circumstances . . . .

[Id. at 34.] 

Dillon filed an appeal with the Seventh Circuit, raising two issues. Dillon

argued: (1) I erred by finding the mandatory minimum of a 10-year consecutive

sentence pursuant to section 924(c) applied to cases involving section 924(j); and (2)

because the robbery offense and murder offense involved substantially the same harm, I

should have grouped the offenses. [Seventh Circuit Case No. 17-2774, DE 11.] The

Seventh Circuit affirmed the sentence, finding:

We have encouraged sentencing judges to state on the record

whether the resolution of disputed issues affects the punishment

and have held that a statement of irrelevance means that we need

not engage in what this judge called an ‘academic exercise.’ The

judge made such a statement here, and we have no reason to doubt

that questions about the relation between § 924(c) and § 924(j) are

indeed irrelevant to the sentence. Because § 924(j)(1) authorizes

‘any term of years,’ a sentence of 510 months is lawful whether or

not the two counts are grouped, whether or not the minimum

sentence under § 924(j) is 120 months, and whether or not the §

924(j) sentence must run consecutively to the § 1951 sentence . . . .

United States v. Dillon, 720 F. App’x 310, 311 (7th Cir. 2018). 

5

USDC IN/ND case 2:16-cr-00027-PPS-JEM document 108 filed 10/01/24 page 5 of 11
Dillon sought petition for a writ of certiorari on July 20, 2018, which was denied

by the Supreme Court of the United States on February 19, 2019. Dillon timely filed his

section 2255 motion on February 24, 2020, and I denied that motion on June 26, 2020,

finding that I believed the imposed sentence was appropriate regardless of whether a

section 924(j) sentence must run consecutive to an underlying sentence, and repeating

my position that I would apply the same sentence even if the law of section 924(j)

allowed for concurrent sentences. [DE 59, 68.] Specifically, I reasoned that “I justified

my sentencing at length in this case [DE 53 at 28-5] and provided multiple reasons for

why I thought this sentence was appropriate due to the factors in section 3553(a) and

circumstances of the case, even aside from the discretionary guidelines.” [DE 68 at 13.] I

declined to issue a certificate of appealability. Dillon filed a notice of appeal, but the

appeal was dismissed by the Seventh Circuit on September 28, 2020. [DE 79.] 

Over the next few years, Dillon filed several other motions, all hovering around

the same subject as this one. He filed a motion for me to disqualify and recuse myself

[DE 81] and a motion to take judicial notice with a request for clarification [DE 83],

which were both denied. [DE 82, 87.] Dillon then filed an application for leave to file a

second or successive petition under section 2255. [DE 89.] I entered an order denying

the motion and explaining Dillon would have to seek leave to file such a motion with

the Seventh Circuit, and I actually ordered the application to be forwarded to the

Seventh Circuit for evaluation. [DE 90.] The Seventh Circuit declined to grant

permission for Dillon to file a second or successive section 2255. [DE 92.] Dillon then

6

USDC IN/ND case 2:16-cr-00027-PPS-JEM document 108 filed 10/01/24 page 6 of 11
filed another request to file a successive petition, which the Seventh Circuit denied on

September 7, 2023. [DE 92.] Dillon subsequently filed a motion to correct judgment

pursuant to Federal Rule of Criminal Procedure 36 [DE 96] which was denied [DE 97]. 

In front of me now is Dillon’s most recent filing to correct his sentence under

Federal Rule of Civil Procedure 60(b), seeking to modify based upon the Supreme

Court’s ruling in Lora v. United States, 599 U.S. 453 (2023). [DE 101.] Lora held that a §

924(j) does not incorporate § 924(c)’s mandatory consecutive sentence, and a § 924(j)

sentence can run either concurrently or consecutively to another sentence. In other

words, it is true that the interpretation of the law has changed after Dillon’s sentencing -

it is now clear that a sentence for use and carrying of a firearm during and in relation to

a crime of violence causing the death of a person can run either concurrently or

consecutively to another sentence. Id. However, because I explicitly ruled at the time of

sentencing I would have imposed this sentence regardless of whether section 924(j) was

required to be consecutive or not, this subsequent interpretation of the law in Lora has

no bearing on Dillon’s sentence. And because Dillon’s motion is in actuality a second §

2255, it must be dismissed. 

Discussion

Dillon styles his motion as a motion to correct sentence under Federal Rule of

Civil Procedure 60(B)(6). [DE 101.] Rule 60(b) provides that a court may relieve a party

from a final judgment only in certain circumstances like mistake, newly discovered

evidence, fraud, the judgment is void, if the judgment has been satisfied, or for “any

7

USDC IN/ND case 2:16-cr-00027-PPS-JEM document 108 filed 10/01/24 page 7 of 11
other reason that justifies relief.” Fed. R. Civ. P. 60(b). This statute provides relief only

in the most “extraordinary situations where a judgment is the inadvertent product of

special circumstances and not merely erroneous application of law.” Kennedy v.

Schneider Elec., 893 F.3d 414, 419 (7th Cir. 2018) (citations omitted). 

A party invoking this rule must claim grounds for relief that could not have been

used to obtain a reversal by means of a direct appeal. See Adams v. United States, 911

F.3d 397, 403 (7th Cir. 2018). As that Court explained:

Rule 60(b) relief is thus different than post-conviction relief under

18 U.S.C. § 2255 which is meant to challenge a sentence upon the

ground that the sentence was imposed in violation of the

Constitution, or laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence

was in excess of the maximum authorized by law, or is otherwise

subject to collateral attack . . .’. 28 U.S.C. § 2255(a). Ordinarily a

defendant has but one chance at post-conviction relief under 28

U.S.C. § 2255 to set aside or correct his sentence, except in the case

of newly discovered evidence or a new rule of retroactively applied

constitutional law – neither of which is at issue here. See 28 U.S.C. §

2255(h). The Antiterrorism and Effective Death Penalty Act

requires a prisoner to receive the prior approval of the Court of

Appeals before filing a second or successive motion under § 2255.

See 28 U.S.C. § 2255(h); Nunez v. United States, 96 F.3d 9900, 991 (7th

Cir. 1996). “No matter how powerful a petitioner’s showing, only

this [appellate] court may authorize the commencement of a second

or successive petition. . . . From the district court’s perspective, it is

an allocation of subject-matter jurisdiction to the court of appeals. 

A district court must dismiss a second or successive petition, unless

the court of appeals has given approval for its filing.” Nunez, 96

F.3d at 991 (emphasis in original).

Id. Therefore, if a Rule 60(b) motion is, effectively, asking for relief that one would ask

for in a motion under section 2255, such a motion would be subject to the same

restrictions or requirements for successive habeas petitions. Gonzalez v. Crosby, 545 U.S.

8

USDC IN/ND case 2:16-cr-00027-PPS-JEM document 108 filed 10/01/24 page 8 of 11
524, 529-30 (2005). As the Court on Gonzalez explained:

First, any claim that has already been adjudicated in a previous

petition must be dismissed. § 2244(b)(1). Second, any claim that

has not already been adjudicated must be dismissed unless it relies

on either a new and retroactive rule of constitutional law or new

facts showing a high probability of actual innocence. § 2244(b)(2). 

Third, before the district court may accept a successive petition for

filing, the court of appeals must determine that it presents a claim

not previously raised that is sufficient to meet § 2244(b)(2)’s new

rule or actual-innocent provisions. 

Id. at 529-30 (emphasis in original).

So, when a petitioner like Dillon has already been heard in post-conviction

proceedings and then attempts to reopen the proceedings by moving under Rule 60(b),

my first task is to determine whether the petitioner “has in reality filed an unauthorized

second or successive petition.” Ramirez v. United States, 799 F.3d 845, 850 (7th Cir. 2015). 

Otherwise, “Rule 60 could be used to circumvent the statutory limitation on successive

motions under § 2255.” Adams, 911 F.3d at 404. 

In the current motion, Dillon argues that section 924's consecutive sentence

mandate did not apply, and the district court had discretion to impose the sentences

concurrently. [DE 101 at 2-3.] This is a substantive argument (there are no allegations of

a procedural error that could potentially constitute a viable Rule 60(b) motion after a

failed section 2255 under Gonzalez, 545 U.S. at 531-32). Moreover, Dillon hasn’t raised a

new issue to review - instead, he has re-raised his argument on appeal that the sentence

need not be consecutive, as well as the central issue of his section 2255 petition. The

Seventh Circuit already addressed this issue in affirming the judgment, and found

9

USDC IN/ND case 2:16-cr-00027-PPS-JEM document 108 filed 10/01/24 page 9 of 11
because I stated I would have given Dillon the same sentence regardless of whether

section 924(j) carried a consecutive minimum sentence or not, “[a]ny further discussion

of the legal issues is inappropriate, because they do not matter to the outcome.” [DE 58

at 3.] Dillon brought up this same argument in his motion under 2255 too, and I

reasoned:

As I mentioned previously in this order, the first issue was already

raised by trial counsel, as well as appellate counsel, and rejected. I

very clearly stated ‘that 924(j) does have to run consecutive to any

sentence that’s handed down on - - has to be consecutive to the

underlying offense, and so I’m going to overrule the objection.’ [DE

52 at 8.] But more importantly, I also noted that this was an

academic decision, and ‘even if I’m incorrect in the 924(j) having to

be consecutive to the Hobbs Act robbery conviction, the sentence

that I’m about to announce is precisely the sentence that I would

have arrived at in any event because I think it is a just sentence . . .

.’ [Id. at 34.]

[DE 68 at 12.] Therefore, even though Dillon tries to cast his motion as falling under

Rule 60, his arguments clearly constitute another collateral attack on his sentence. As

the Seventh Circuit has reiterated, “[p]risoners cannot avoid the AEDPA’s rules by

inventive captioning . . . Any motion filed in the district court that imposed the

sentence, and substantively within the scope of § 2255, is a motion under § 2255, no

matter what title the prisoner plasters on the cover.” Melton v. United States, 359 F.3d

855, 857 (7th Cir. 2004) (emphasis in original).

Dillon has already filed, and lost, his first section 2255 action, and he offers no

evidence that the Seventh Circuit has approved of the instant motion. Because Dillon

has not received leave to file a successive section 2255 motion, this Court lacks

10

USDC IN/ND case 2:16-cr-00027-PPS-JEM document 108 filed 10/01/24 page 10 of

11
jurisdiction to consider this motion. See United States v. Reyes, No. 2:10-CR-109-10-TLS,

2021 WL 76761, at *1 (N.D. Ind. Jan. 8, 2021); Suggs v. United States, 705 F.3d 279, 282 (7th

Cir. 2013) (“Without authorization from the court of appeals, the district court has no

jurisdiction to hear [a successive section 2255 motion].”); Curry v. United States, 507 F.3d

603, 604 (7th Cir. 2007) (“If a Rule 60(b) motion is really a successive postconviction

claim, the district court will lack jurisdiction unless the prisoner has first obtained our

permission to file it.”). 

Finally, I note that even if I were to analyze the merits of Dillon’s arguments, this

motion would still fail. As covered earlier, I made very clear during his sentencing

hearing that I thought his sentence was appropriate and not dependent upon any

reading of section 924, but that, regardless of whether the sentences were consecutive or

concurrent, I believed his sentence was appropriate under the totality of the

circumstances.

Conclusion 

For the aforementioned reasons, Dillon’s Motion to Correct Sentence Pursuant to

Fed. R. Civ. P. 60(B)(6), properly characterized as a successive motion to vacate his

sentence pursuant to 28 U.S.C. § 2255 [DE 101], is hereby DENIED for lack of

jurisdiction pursuant to 28 U.S.C. § 2255(h).

SO ORDERED. 

ENTERED: October 1, 2024.

 /s/ Philip P. Simon 

PHILIP P. SIMON, JUDGE

UNITED STATES DISTRICT COURT

11

USDC IN/ND case 2:16-cr-00027-PPS-JEM document 108 filed 10/01/24 page 11 of

11