In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-1801, 07-2251, 07-2596

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARTHIA LAMONT TANNER,

LARRY SCOTT, and LANCE FOSTER,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Indiana, Hammond Division.

Nos. 2:04 CR 80-05, 80-11, 80-07—Rudy Lozano, Judge.

ARGUED AUGUST 5, 2008—DECIDED SEPTEMBER 12, 2008

Before POSNER, COFFEY, and MANION, Circuit Judges.

POSNER, Circuit Judge. The defendants were convicted of

federal drug and gun crimes, and appeal. Only Foster’s

appeal need be considered; his codefendants’ appeals are

frivolous, as pointed out in the Anders briefs filed by

their lawyers, and are hereby dismissed.

Foster was given the minimum sentence that Congress

has directed be imposed on a person who, having a
2 Nos. 07-1801, 07-2251, 07-2596

previous felony drug conviction, distributes crack

cocaine—20 years. 21 U.S.C. § 841(b)(1)(A). He challenges

the district judge’s failure to delay the sentencing hearing

for five months, until the 2007 version of the federal

sentencing guidelines went into effect. Under the version

in effect when Foster was sentenced, a previous sentence

that he had received—a sentence of one year’s probation

for reckless driving—was counted in his criminal

history score. U.S.S.G. § 4A1.2(c)(1). Under the same

provision of the guidelines as revised in 2007, that sentence, because it did not exceed (rather than being at

least) one year, would not have counted. Had he been

sentenced under the later guideline, he would still have

been subject to the 20-year statutory minimum sentence

because of his prior drug conviction, but because he

would have had only one prior conviction in his criminal history he would have been eligible for “safety valve”

relief under 18 U.S.C. § 3553(f). See id., § 3553(f)(1). The

safety-valve provision removes the statutory minimum as

a constraint on the sentencing judge and directs him to

impose the sentence that the sentencing guidelines prescribe, which in Foster’s case would be a sentence of

between 97 and 121 months. See U.S.S.G. §§ 2D1.1(c),

2D1.1(b)(11), Ch. 5, Pt. A. Under the regime of Booker, the

judge is to treat the guidelines as only advisory even in a

safety-valve case. United States v. Quirante, 486 F.3d 1273,

1276 (11th Cir. 2007); United States v. Cardenas-Juarez, 469

F.3d 1331, 1334 (9th Cir. 2006). But he cannot treat as

advisory the guideline provisions that are preconditions

for safety-valve relief, namely 18 U.S.C. §§ 3553(f)(1) and

(4). United States v. Hernandez-Castro, 473 F.3d 1004, 1007
Nos. 07-1801, 07-2251, 07-2596 3

(9th Cir. 2007); United States v. McKoy, 452 F.3d 234, 239 (3d

Cir. 2006); United States v. Brehm, 442 F.3d 1291, 1300 (11th

Cir. 2006) (per curiam). And it is section 3553(f)(1) that

conditions safety-valve relief on the defendant’s having

no more than one conviction in his criminal history.

Foster acknowledges that the decision whether to delay

a sentencing hearing is discretionary, but points out that a

discretionary ruling that is infected by material error

cannot stand. The district judge did commit an error; he

thought that because of the statutory minimum sentence

it could make no difference whether the reckless-driving

conviction was included in Foster’s criminal history

score; we have just seen that it could make a difference.

The government makes a number of arguments for

why we should overlook the judge’s error, but misses the

main one. The decision to grant or deny a continuance (the

conventional term for an interim delay in a litigation) is

a management tool. Morris v. Slappy, 461 U.S. 1, 11-12

(1983); United States v. Tingle, 183 F.3d 719, 723 (7th Cir.

1999); United States v. Correia, 531 F.2d 1095, 1098 (1st Cir.

1976). It can have substantive consequences, as this case

illustrates: the guidelines (and the Sentencing Reform

Act itself) direct the judge to calculate the guidelines

sentence on the basis of the version of the guidelines that

is in force at sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii);

U.S.S.G. § 1B1.11. The judge can usually give a different

sentence (though not in this case), but the required starting

point of his analysis—namely the guidelines range, Gall v.

United States, 128 S.Ct. 586, 596 (2007)—is the range calculated on the basis of the guidelines in force when sen-
4 Nos. 07-1801, 07-2251, 07-2596

tence was imposed, not an earlier set of guidelines. United

States v. Wise, 515 F.3d 207, 220 (3d Cir. 2008); United

States v. Vicol, 514 F.3d 559, 561-62 (6th Cir. 2008).

Sentencing judges can properly grant continuances to

await clarification of the law, e.g., United States v. Brown,

No. 00-CR-939, 2004 WL 1879949, at *1 (N.D. Ill. Aug. 18,

2004), or, what is analytically similar, if an impending

change in law would require modification of a judgment

entered on the basis of the law currently in force. Hallstrom

v. City of Rockford, 157 N.E.2d 23, 25 (Ill. 1959); Lanning

v. Sprague, 227 P.2d 347, 349 (Idaho 1951); Kemp v. Day &

Zimmerman, Inc., 33 N.W.2d 569, 582-85 (Iowa 1948). These

are examples of continuances designed to promote

efficient case management. The only case that Foster

cites for the propriety of a “substantive” continuance,

United States v. Madrigal, 327 F.3d 738 (8th Cir. 2003), does

not support his position (the actual holding of Madrigal is

inconsistent with our decision in United States v. Alvarado,

326 F.3d 857, 862 (7th Cir. 2003), but that is of no

moment in this case). Madrigal is about the propriety of

granting a continuance to allow a defendant more time

to make the proffer required for safety-valve relief (see

18 U.S.C. § 3553(f)(5)) when his earlier failure to do so

was excusable. It has nothing to do with a judge’s wanting

to make a different law apply by postponing sentencing.

It is improper for a judge to grant (or deny) a continuance for the very purpose of changing the substantive

law applicable to the case. We cannot find a reported

federal appellate decision that addresses the question, but

an unreported one, United States v. Garcia, No. 92-50675,
Nos. 07-1801, 07-2251, 07-2596 5

1993 WL 263459 (9th Cir. July 13, 1993) (per curiam), notes

that “the opportunity for a better sentence under a new

Amendment to the Guidelines is not a legitimate reason

to request a continuance.” Id. at *1. The court added that

“granting a continuance on this basis would greatly

inconvenience a district court’s ability to impose sentence as defendants would repeatedly seek continuances

and cause delays upon learning of Amendments to the

Guidelines that may benefit the defendant but are yet to

take effect.” Id. And in United States v. Gonzalez-Lerma, 71

F.3d 1537, 1542 (10th Cir. 1995), overruled on other

grounds in United States v. Flowers, 464 F.3d 1127, 1130 n. 1

(10th Cir. 2006), the court said that “we can foresee defendant’s theory [that a continuance can be granted in order

to enable a defendant to take advantage of a foreseeable

change in the law] creating an ominous situation in which

every attorney whose client faces sentencing would

attempt to delay sentencing each time lawmakers debate

a new statute or amendment. This is an outcome that we

cannot allow.” See also United States v. Flores-Ochoa, 139

F.3d 1022, 1024 (5th Cir. 1998).

Kolman v. Kolman, 58 F.R.D. 632, 633 (W.D. Pa. 1973), is

consistent with Garcia, but another district court decision

is not, though it contains no discussion of the issue. United

States v. Singh, No. 93-CR-931, 1994 WL 510053, at *1

(S.D.N.Y. Sept. 16, 1994), affirmed on unrelated grounds,

No. 94-1699, 1995 WL 595548 (2d Cir. Sept. 21, 1995). In a

few cases, a defendant has argued that his lawyer rendered ineffective assistance by failing to seek a continuance to await the effective date of a more favorable guideline and the courts of appeals, while not finding ineffec-
6 Nos. 07-1801, 07-2251, 07-2596

tive assistance, did not question (nor, for that matter,

confirm) the district court’s authority to grant such a

continuance. United States v. Prince, 110 F.3d 921, 926 (2d

Cir. 1997); United States v. Briceno-Rodriguez, 47 Fed. Appx.

167, 169-70 (3d Cir. 2002); cf. United States v. Ruiz-Gea, 340

F.3d 1181, 1185 (10th Cir. 2003). In two otherwise similar

cases, however, United States v. Flores-Ochoa, supra, and

United States v. Gonzalez-Lerma, supra, the court, as we have

noted, did question the propriety of such a continuance;

and in Prince it appears that the district judge thought

such a continuance improper. 110 F.3d at 926.

A sentencing judge cannot rightly say, “I do not like the

current guidelines, so I am continuing the sentencing

hearing in the hope and expectation (in this case, the

certainty) that they will change.” Or: “Ordinarily I

would grant a continuance, but I won’t do so in this case

because I prefer the current guidelines to those about to

take effect.” In cases in which the guidelines are purely

advisory, the judge can regard or disregard them

whether or not they are currently in force. That is the

usual case but not the present one, since unless the sentencing was delayed the defendant would be ineligible

for safety-valve relief and would thus be subject to a

statutory sentence floor. But the point is general: the power

to grant or deny a continuance is abused when it is exercised not in order to manage a proceeding efficiently but

in order to change the substantive principles applicable

to a case. That would be like the judge’s trying to change

the effective date of a statute because he liked, or disliked,

how the statute had changed the existing law.
Nos. 07-1801, 07-2251, 07-2596 7

Furthermore, the Sentencing Commission, not the

courts, has been given the authority to decide whether to

make a guidelines change prospective or retroactive. The

sentencing judge can shorten the prison term to which

he has sentenced a defendant because the Commission

reduced the sentencing range after sentence was imposed

only if the Commission has issued a policy statement

authorizing such retroactive application of its guidelines

change. 18 U.S.C. § 3582(c)(2), 28 U.S.C. § 994(a)(2)(C). The

Commission has not authorized such application with

respect to the guidelines amendment that Foster wants to

be sentenced under. U.S.S.G. § 1B.10(c). He wants the

district judge to countermand the Commission’s choice by

waiting until a change intended by the Commission to be

prospective has become retroactive by virtue of the

passage of time. That would usurp the authority that

Congress has given the Commission.

And while a sentencing judge is to use the guidelines in

force at sentencing, when a case is remanded for

resentencing he is to use the guidelines that were in

force at the time of the original sentencing, even if they

have changed in the meantime, 18 U.S.C. § 3742(g)(1). This

is further evidence that judges are not supposed to be

the ones who decide which guideline amendments apply

to old cases.

Procedural and evidentiary rules generally take effect

when promulgated, with full application to pending as

well as future cases, sometimes with outcome-determinative effect. A judge could not properly delay the beginning

of a trial because he thought a rule about to come into
8 Nos. 07-1801, 07-2251, 07-2596

effect would make it easier (or harder) for the plaintiff to

prove damages, though he could delay the trial because

the new rule would shorten the trial. It is especially

improper for a judge to delay sentencing because he

wants to give the defendant a lighter (or a heavier) sentence than the current law permits, for “the court must

impose sentence without unnecessary delay.” Fed. R. Crim.

P. 32(b)(1). The judge’s error in thinking that it made

no difference when Foster was sentenced was therefore

harmless, because to grant a continuance on the ground

sought by Foster would have been an abuse of discretion.

A further wrinkle deserves consideration. A codefendant

of Foster, though convicted on the same day as he, had as

a result of obtaining continuances not yet been sentenced when the new guideline took effect. Had he been

facing the statutory minimum sentence before then,

therefore, he would have been eligible for safety-valve

relief. But there is no indication that he was facing such

a sentence—in fact it appears that he had no criminal

record at all, Andy Grimm, “Ex-Boxer Guilty on Drug

Rap,” Merrillville Post-Tribune, Nov. 7, 2006, p. A1—or

that if he was facing such a sentence the new guideline

would help him. 

But imagine a case in which two defendants are identically circumstanced, one receives a continuance based

on proper case-management concerns and as a result will

be eligible for safety-valve relief when sentenced and the

other seeks a continuance on the ground that to deny

him such relief would create an irrational disparity in

punishment. Our analysis would not bar the sentencing
Nos. 07-1801, 07-2251, 07-2596 9

judge from granting a continuance on this ground. For

it would be a matter not of the judge’s preferring the

new guideline to the old one but of his wanting to

avoid creating an arbitrary punishment differential, and

that is a proper consideration for a sentencing judge.

18 U.S.C. § 3553(a)(6). This is not such a case, however,

so the judgment in Foster’s case is

AFFIRMED.

9-12-08