Appeal from the United States District Court for the Central District of Illinois, Peoria Division.
No. 91 C 10011--Michael M. Mihm, Chief Judge.
Before POSNER, Chief Judge, and CUDAHY and MANION, Circuit Judges.
ARGUED SEPTEMBER 15, 1995
DECIDED DECEMBER 29, 1995
Defendant Lykes moves, pursuant to 18 U.S.C. sec. 3582(c)(2), for reconsideration of his sentence for possession of a firearm by a felon. 18 U.S.C. sec. 922(g). Lykes was sentenced on April 3, 1992 to a term of 120 months imprisonment for the offense, which was committed on January 29, 1990. The sentence was enhanced by the application of the career offender provision of the United States Sentencing Guidelines. USSG sec. 4B1.1. Lykes here appeals the denial of his sec. 3582(c)(2) motion for reconsideration of his sentence. We affirm.
Sentencing under the career offender provision requires that the defendant have been convicted of three offenses, including the current one, which are either "crimes of violence" or controlled substance violations. Lykes' career offender sentence was predicated on the sentencing court's construction of the sec. 922(g) conviction as a "crime of violence." Under a 1991 amendment to the Sentencing Guidelines (Amendment 433), sec. 922(g) offenses may not be so construed. USSG sec. 4B1.2, Comment. (n.2). Another 1991 amendment (Amendment 374), however, substantially increased the base offense level for sec. 922(g) in those cases in which a defendant had at least two prior convictions of crimes of violence or of controlled substance violations. USSG sec. 2K2.1(a)(2). Thus the guidelines in effect at the time of Lykes' sentencing (the 1991 Guidelines) would have precluded sentencing Lykes as a career offender but would have exactly compensated by providing a higher base level for his offense.
The sentencing court, however, applied the 1989 Guidelines, which were in effect at the time of the offense, in calculating Lykes' sentence. Since Amendment 433 was not in effect in 1989 and since this circuit's earlier precedent treated sec. 922(g) violations as crimes of violence, the sentencing judge sentenced Lykes as a career offender under the 1989 Guidelines. Subsequently, a panel of this court considered Lykes' direct appeal from the 1992 sentence. At that time, he argued that Amendment 433 precluded us from approving a sentence incorporating the career offender enhancement. United States v. Lykes, 999 F.2d 1144 (7th Cir. 1993) (Lykes I). Resolution of Lykes' appeal required a rather complicated analysis of the effects on Lykes' sentence of various guidelines amendments which were enacted between the time of the offense (January 29, 1990) and the time of sentencing (April 3, 1992). We also were required to consider the impact on the sentence of the Ex Post Facto Clause. We concluded in Lykes I that the Ex Post Facto Clause did not require the sentencing judge to apply the 1989 Guidelines and that the 1991 Guidelines should have been applied. However, we also concluded that, regardless whether the guidelines in force at the time of the offense or those in effect at the time of sentencing were applied, Lykes' sentence would be the same. The reason for this was that the earlier enhancement and the later increase in the base offense level were in Lykes' case of equivalent magnitude; the deletion of the first was exactly offset by the increase in the second. In Lykes I the court also concluded that Amendment 433 was a substantive amendment to the guidelines, which could not be employed retroactively at sentencing to constrain the interpretation of the 1989 Guidelines.
The case is now before us in a different procedural posture requiring a different analysis. Lykes now appeals the district court's subsequent denial of his motion under sec. 3582(c)(2) for reconsideration of his sentence. That statute allows a court to reduce a sentence "in the case 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 . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." The Commission is instructed in 28 U.S.C. sec. 994(u) that "if the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." The Sentencing Commission complies with sec. 3582 (c)(2) and sec. 994(u) by listing in USSG sec. 1B1.10(c) those amendments to the guidelines which will ordinarily warrant such reductions. In November of 1992, Amendment 433 was included in that list of amendments warranting reductions of sentences. USSG App. C, Amendment 469.
The district court correctly concluded that, in spite of the inclusion of Amendment 433 in sec. 1B1.10(c)'s list of "retroactive" amendments, Lykes is not eligible for a sentencing reduction under sec. 3582(c)(2). This conclusion, however, should not have been based on our statement in Lykes I that Amendment 433 is a "substantive," rather than a merely "clarifying," amendment, and on sec. 1B1.11, which dictates the appropriate choice of guideline for initial sentencing. Instead, sec. 3582(c)(2) and its implementing guideline, sec. 1B1.10, are the provisions determining that Lykes has no claim to reconsideration of his sentence at this time. Under these provisions, he does not meet the threshold qualification of having been sentenced "based on a sentencing range that has subsequently been lowered."
In this analysis, the chronology of events, which we outline here, is important. Lykes committed his sec. 922(g) violation on January 29, 1990. On November 1, 1991, the Sentencing Commission amended the commentary to the career offender enhancement guideline (via Amendment 433) to ensure that sec. 922(g) offenses would no longer be considered crimes of violence for purposes of that enhancement. At the same time the Commission raised the base offense level for the sec. 922(g) offense. On April 3, 1992 Lykes was sentenced pursuant to the 1989 Guidelines and in line with our precedent which treated sec. 922(g) as a crime of violence. On November 1, 1992 the Commission added USSG sec. 1B1.11 (which controls the choice of guideline for initial sentencing). The Commission on the same date also amended sec. 1B1.10 (which relates to sentence reconsideration) to provide that Amendment 433 could, under appropriate circumstances, form ...