document.”). As such, a Rule 36 motion is not the proper vehicle for challenging the contents of
a PSR; any substantive objections are governed by Rule 32 of the Federal Rules of Criminal
Procedure. Mackay, 757 F.3d at 199; see also United States v. Long, 419 F. App'x 845, 848
(10th Cir. 2011).

On that front, however, Quimby’s motion is untimely. Under Rule 32, Quimby had
fourteen days after receiving the PSR to challenge any facts contained therein. See Fed. R. Crim.
P. 32(f)(1). As such, Quimby should have objected within the fourteen days after receiving the
PSR or at sentencing. See United States v. Williams, 777 F.3d 909, 909 (7th Cir. 2015)
(“Defendants who disagree with the contents of the PSR must object before or at sentencing:
only if a timely objection is made must a district judge state on the record (if the issue affects the
sentence) whether the PSR is correct. . . . [Defendant] raised the issue indirectly at sentencing but
did not ask for a correction under Rule 32 and did not pursue the matter on appeal. It is far too
late to revise this subject.) He did not do so. Accordingly, his request must be denied.

Lastly, as to any request for relief under Rule 60(b), the rule applies to civil cases, not
criminal proceedings. United States v. Guereca, 280 F. App’x 541, 541 (7th Cir. 2008); see also
United States v. Gibson, 424 F. App’x 461, 464 (6th Cir. 2011) (“Rule 60(b) does not provide
relief from judgment in criminal proceedings”); United States v. Diaz, 359 F. App’x 965, 966
(11th Cir. 2010) (citing United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (Rule
60(b) “does not provide for relief from judgment in a criminal case.”)). Thus, the court also
denies Quimby’s Rule 60(b) motion.

Date: September 15, 2015 pen ML ffihens—

UW. District Judge Joan H. Lefkow



IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA )
) Case No. 02 CR 968
v. )
) Judge Joan H. Lefkow
ANTHONY QUIMBY )

ORDER

Defendant Anthony Quimby’s motions to reduce sentence under Amendment 782 and 18
U.S.C. § 3582(c)(2) (dkt. 102) and for relief from judgment under Federal Rules of Civil
Procedure 60(a) and 60(b)(6) (dkt. 106) are denied. See Statement.

STATEMENT
L Background

Anthony Quimby was arrested by the Drug Enforcement Administration outside his
residence for possession of cocaine. (See dkt. 1.) A grand jury returned a one-count superseding
indictment charging Quimby with conspiracy to distribute a controlled substance in violation of
21 U.S.C. § 841(a)(1). (See dkt. 8.) On August 31, 2006, Quimby entered into a voluntary blind
plea of guilty. (See dkt. 68.)

The court sentenced Quimby to 240 months’ imprisonment on December 12, 2006. (See
dkt. 74.) In calculating Quimby’s Guidelines range, the court found that Quimby’s offense level
was 37 because of his status as a career offender under USSG § 4B1.1. PSR at 5; see also
Statement of Reasons.' The court reduced his offense level by three levels for acceptance of
responsibility, resulting in a total offense level of 34, and determined that Quimby’s past conduct
placed him in a criminal history category of VI. Jd. A combined offense level of 34 and a
criminal history category of VI yielded a Guidelines range of 262 to 327 months’ imprisonment.
PSR at 18; see also Statement of Reasons.

During the sentencing hearing Quimby objected to the portion of the PSR that held him
responsible for a Guidelines enhancement for possession of a dangerous weapon. Sentencing
Transcript 3-4. The PSR applied a two-level enhancement under § 2D1.1(b)(1) because
defendant possessed a .40 caliber semi-automatic pistol at his residence on July 24, 2002. PSR
at 3. At the sentencing hearing, Quimby contested the finding that he had possessed a firearm.
Sentencing Transcript at 4. In response the government noted that it had recorded phone calls in
which the defendant discussed firearms, but the government was uncertain whether a firearm was
actually recovered on that particular date. Jd. at 6-9. Accordingly, the court found insufficient
evidence to support a two-level enhancement for possession of a firearm under USSG

' The Statement of Reasons incorrectly identifies defendant as a criminal history category IV. His criminal
history category should be VI as indicated in the PSR.



§ 2D1.1(b)(1). Jd. at 9. For that reason, the court directed the probation officer to change the

“2” reflecting the two-level enhancement to a zero. Jd. In doing so, the court recognized that

this change did not change the defendant’s Guidelines calculation. /d. at 8-10. Now, Quimby
has filed two motions that are before the court for decision.

Il. Motion to Reduce Sentence

Quimby first seeks a reduced sentence under 18 U.S.C. § 3582(c)(2) and Amendment
782. (See dkt. 102.) Quimby, however, is not eligible for a reduction, as his adjusted offense
level was determined by his status as a career offender, not the drug quantity tables found in
USSG §§ 2D1.1 and 2D1.11. As such, Amendment 782 does not have the effect of lowering
Quimby’s Guidelines range. See Dillon v. United States, 560 U.S. 817, 826, 130 S. Ct. 2683,
177 L. Ed. 2d 271 (2010) (holding that a reduction is permitted only when such a reduction is
consistent with the applicable policy statements issued by the Sentencing Commission); see also
USSG § 1B1.10, cmt. n.1(A) (2014) (explaining that a reduction in the defendant’s term of
imprisonment is not authorized and is inconsistent with the policy statement under USSG §
1B1.10 if the amendment does not have the effect of lowering the defendant’s applicable
Guidelines range).

Quimby also argues that a reduction is appropriate based on issues that are unrelated to
Amendment 782. For example, he contends that his medical issues and good behavior while
incarcerated weigh in favor of imposing a reduced term. It is well established, however, that
amendments to the Sentencing Guidelines do not authorize a full resentencing of the defendant.
See Dillion, 560 U.S. at 831; White v. United States, 745 F.3d 834, 836 (7th Cir. 2014); United
States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999). As such, courts have consistently rejected
attempts by defendants to raise issues not provided for under a retroactive amendment. United
States v. Carter, 500 F.3d 486, 490-91 (6th Cir. 2007); United States v. Smith, 241 F.3d 546,
548-549 (7th Cir. 2001). Thus, since Amendment 782 does not provide for reduction based on
medical conditions or positive conduct, no reduction is permissible.

Quimby also argues that applying Amendment 759 to determine his eligibility under
Amendment 782 violates the Ex Post Facto Clause. This argument also fails. The Ex Post Facto
Clause prohibits “the imposition of punishment more severe than the punishment assigned by
law when the act to be punished occurred.” Weaver v. Graham, 450 U.S. 24, 30, 101 S. Ct. 960,
67 L. Ed. 2d 17 (1981). If the effect of post-conduct amendments to the Guidelines is not to
increase a defendant’s punishment beyond what it would have been without those amendments,
then there is no ex post facto problem. Id; see also United States v. Diggs, 768 F.3d 643, 645—
646 (7th Cir. 2014); United States v. Waters, 771 F.3d 679, 681 (9th Cir. 2014). Further, the
Supreme Court has specifically said in a related context that “proceedings authorized by §
3582(c)(2) are not constitutionally compelled” and that the court is not aware of a “constitutional
requirement of retroactivity that entitles defendants sentenced to a term of imprisonment to the
benefit of subsequent Guidelines amendments.” Dillon v. United States, 560 U.S. at 828. Due to
the nature of Amendment 782 and § 3582(c)(2) proceedings as only working to reduce certain
sentences rather than increase them, the Ex Post Facto Clause is inapplicable.

Il. Motion for Relief From Judgment



Quimby also seeks relief from judgment or order under Federal Rules of Civil Procedure
60(a) and 60(b). (See dkt. 106.) Quimby contends that during his sentencing hearing the court
ordered that “the mention of such a weapon in the [PSR] will be stricken from the record” and
that despite the court’s order, the reference to the firearm was not removed from the PSR. (/d. at
3-4.) Quimby further states that the failure to remove the reference to the firearm is a clerical
error that has caused him prejudice. (/d. at 4-5.) Quimby’s contentions are unpersuasive.

First, contrary to Quimby’s assertion, the court did not order the removal of references to
any firearm from the PSR. As explained above, the court determined during the sentencing
hearing that there was insufficient evidence to support the two-level enhancement for possession
of a firearm under § 2D1.1(b)(1) and ordered that the “2” in the PSR reflecting this enhancement
be changed to a zero. See Sentencing Transcript at 9 (“So Ill change this to a zero on line 86.”);
see also Statement of Reasons at 1 (“Line 86 changed from +2 to 0 because of lack of proof of
possession of a weapon (§ 2D1.1(b)(1)). (Does not affect total offense level.)”). As such,
Quimby misconstrues the court’s statements at the sentencing hearing.

Second, the portion of the PSR to which Quimby objects does not qualify as a clerical
error that he is entitled to have changed at this juncture. Although Quimby references Federal
Rule of Civil Procedure 60(a), he presumably intends to rely on Federal Rule of Criminal
Procedure 36. See United States v. Mackay, 747 F.3d 195, 198 (Sth Cir. 2014) (noting that Rule
60(a) of the Federal Rules of Civil Procedure is the civil counterpart to Rule 36 of the Federal
Rules of Criminal Procedure). That rule allows a court to “correct a clerical error in a judgment,
order, or other part of the record, or correct an error in the record arising from oversight or
omission.”? Fed. R. Crim. P. 36. A PSR is a “part of the record” subject to correction under
Rule 36. See Mackay, 747 F.3d at 198-200; United States v. Bell, No. 04 CR 202, 2015 WL
4910493, at *3—4 (N.D. Ill. Aug. 17, 2015). Relief under Rule 36, however, is appropriate only
when “the court intended one thing but by merely clerical mistake or oversight did another.”
United States v. Buendia—Rangel, 553 F.3d 378, 379 (Sth Cir.2008) (internal quotation marks
and citation omitted). In other words, Rule 36 allows for the correction of “clerical mistakes”
not “substantive alterations.” > United States v. Johnson, 571 F.3d 716, 718 (7th Cir.2009); see also
United States v. Wilkes, 376 Fed. App’x. 295, 296 (4th Cir.2010) (per curiam) (“We note that
Rule 36 motions apply only to clerical errors and are not the proper vehicle for challenging the
substance of the information in a presentence report (‘PSR’).”) Here, Quimby is seeking a
substantive alteration to the PSR as he seeks to have the firearm weapon paragraph removed
from the report. United States v. Holley, 604 F. App’x 338, 339 (5th Cir. 2015) (Mem.)
(“Removing the PSR’s references to the Holley drug trafficking organization would have
resulted in the district court making substantive changes to the facts as stated in that

? Similarly, Rule 60(a) of the Federal Rules of Civil Procedure provides that “[c]lerical mistakes
in judgments, orders or other parts of the record and errors therein arising from oversight or omission may
be corrected by the court at any time of its own initiative or on the motion of any party and after such
notice, if any, as the court orders.” Fed. R. Civ. P. 60(a).

* Rule 60(a) is also limited to clerical errors and provides no basis for correcting substantive
errors. See Brenner v. C.F.T.C., 338 F.3d 713, 721 (7th Cir. 2003).