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United States v. Cunningham

February 4, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DEREK CUNNINGHAM AND NORMAN THOMAS, DEFENDANT-APPELLANTS.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04-CR-8889-Milton I. Shadur, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge

ARGUED JANUARY 21, 2009

Before POSNER, FLAUM, and WOOD, Circuit Judges.

This case presents the consolidated appeals of Derek Cunningham and Norman Thomas. Their appeals arise from the same prosecution and raise the same purely legal issue: whether a district court, in reducing a defendant's sentence pursuant to 18 U.S.C. § 3582(c)(2), has authority under United States v. Booker, 543 U.S. 220 (2005) to reduce a defendant's sentence beyond the retroactive Guidelines amendment range. For the reasons explained below, we hold that a district court does not have authority to do so and therefore affirm the judgment of the district court.

I. Background

Because this appeal presents a purely legal question, the facts of defendants' convictions need not be explored at length. Suffice to say, in the original prosecution, co-defendants Thomas and Cunningham both pled guilty to conspiring to distribute crack cocaine in violation of 21 U.S.C. § 846. On January 31, 2006, the district court sentenced Thomas to 108 months in prison and Cunningham to 87 months in prison. Both sentences were at the low end of the advisory Sentencing Guidelines range applicable to the respective defendants.

In June 2008, the defendants filed section 3582(c)(2) motions to reduce their sentences based on the retroactive amendments to the crack cocaine Guidelines. Based on the change in the crack quantities and corresponding offense levels, each of the defendants' base offense levels were reduced by two levels. The defendants thus requested that their sentences be reduced two levels in light of the amendment. However, they also asserted that the district court had the authority to consider granting them further sentence reductions, resulting in terms of imprisonment below their respective amended Guideline ranges. With regard to this second point, defendants argued that the district court had authority to reduce their sentences below the amended Guideline ranges because Booker made the Sentencing Guidelines advisory.

On July 17, 2008, the district court reduced the defendants' sentences but declined to decrease their sentences below the two level reduction authorized by the retroactive amendment. The district court held that Booker was not implicated because "Booker concerns constitutional limitations on increasing a sentence beyond what is considered the prescribed maximum without a jury finding, not, as in this case, to [sic] decreasing a sentence. Section 3582(c)(2) concerns only sentence reductions and thus does not implicate Booker or the constitutional limitations upon which that decision was premised."

Defendants have appealed.

II. Discussion

We review the district court's determination of questions of law de novo. United States v. Ryerson, 545 F.3d 483, 487 (7th Cir. 2008).

Title 18 U.S.C. § 3582(c)(2) provides that [I]n 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 pursuant to 28 U.S.C. 944(o) . . . the court may reduce the term of imprisonment, after considering the factors set forth in § 3553(a) to the extent they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

The policy statements relevant to this case are found in Sentencing Guidelines sections 1B1.10(a)(3) and 1B1.10(b)(2)(A). Section 1B1.10(a)(3) states that "proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant." Section 1B1.10(b)(2)(A) provides that "the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1) of this subsection."*fn1

The basic question in this case is whether these policy statements regarding section 3582(c)(2) resentencings- first, that section 3582(c)(2) reductions do not constitute full resentencings, and second, that a court shall nor reduce a defendant's imprisonment to less than the minimum of the amended guideline range-conflict with Booker's general rule that the Sentencing Guidelines are advisory. That is, whether or not district courts have the authority, in making section 3582(c)(2) ...


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