United States District Court, N.D. Illinois, Eastern Division
Honorable Edmond E. Chang United States District Judge
Edmond E. Chang Order In July 2014, the jury found Defendant
John Smith guilty of all counts in the indictment, comprised
of four counts of distributing heroin. 21 U.S.C. §
841(a)(1). R. 70. Smith received a 216-month sentence on each
count, to run concurrently. Smith appealed, making an
argument as to the conviction, but the Seventh Circuit
affirmed the judgment. Pending are two motions that had been
held in abeyance during the appeal.
3582(c). First, Smith moves to reduce his sentence under
what he says is an applicable, retroactive reduction to the
drug-quantity Sentencing Guidelines. The statutory vehicle
for that sort of motion is 18 U.S.C. § 3582(c), which
authorizes the Sentencing Commission to give retroactive
effect to Guidelines amendments; in turn, the Commission uses
Guideline § 1B1.10 to list the retroactive amendments.
the problem with Smith's request is that the amendment on
which he relies-Amendment 782-only lowered the drug-quantity
offense level, but Smith's Guidelines range was set by
the career-offender Guideline, § 4B1.1. R. 136,
Sentencing Tr. at 11. Indeed, Smith's counsel agreed that
the career-offender Guideline did apply, id. at
10-11, although naturally Smith argued for a below-range
sentence. Thus, the Guidelines range was the product of an
offense level 37, criminal history category VI, yielding 360
months to life imprisonment. Amendment 782 does not affect
that calculation. The § 3582(c) motion must be denied.
to Clarify. Smith's second motion asks that this
Court to “clarify” the 216-month imprisonment
sentence so that it runs concurrently with an Indiana
drug-trafficking sentence that Smith received after the
federal sentencing. R. 147 at 1. Specifically, at the
sentencing in this case, it was known to the parties and the
Court that Smith faced a pending Indiana state-court
prosecution (Smith had not yet been found guilty) for
possessing with intent to distribute 3 kilograms of heroin.
At the federal sentencing, the government sought to use the
Indiana drug trafficking as a fact in aggravation, 18 U.S.C.
§ 3553(a). R. 136, Sentencing Tr. at 14. On review of
the evidence, the Court found that Smith did arrange for a
courier to deliver 3 kilos of heroin from Smith to others in
Cincinnati. Id. The evidence included car-rental
records in Smith's name (the heroin was found in the
car), Smith's fingerprint on one of the heroin-package
wrappings, the interview reports of two cooperating
defendants, and $450, 000 in cash deposits into Smith's
business bank account (without corresponding business
expenses) over an approximately two-year period. Sentencing
Tr. at 16-18.
light of all that evidence, the Court took into account the
Indiana heroin seizure when fashioning the federal sentence.
The Court commented that the defense counsel in the Indiana
case could, if Smith were even to be convicted there, try
persuading the state judge to give concurrent time.
Sentencing Tr. at 19. But during the federal sentencing,
Smith did not ask the Court to run the federal
sentence concurrent with whatever sentence might be imposed
in the Indiana state-court case. Smith makes that request
now, in his motion to “clarify” the sentence. R.
147 at 1.
are a couple of problems with Smith's request that the
federal sentence be deemed concurrent with the Indiana
sentence. At the threshold is that Section 3582(c) severely
limits a court's authority to modify an otherwise final
sentence. That section starts with a general ban: “The
court may not modify a term of imprisonment once it has been
imposed ….” § 3582(c). It then lists only
four exceptions. The first two require a motion by the Bureau
of Prisons: if “extraordinary and compelling reasons
warrant” a reduction, § 3582(c)(1)(A)(i), or if an
elderly (at least 70 years of age) and long-serving defendant
(at least 30 years) ought to be released, §
3582(c)(1)(A)(ii). The BOP has made no motion here.
third exception allows reduction pursuant to another
statutory provision (28 U.S.C. § 2255 comes to mind) or
pursuant to Federal Rule of Criminal Procedure 35. But Smith
has not invoked either a statute or Rule 35, not does there
appear to be a basis to do so.
fourth and final exception is a retroactively applicable
amendment to the Guidelines range, § 3582(c)(2), such as
Amendment 782, the drug-quantity amendment discussed earlier
in this Order. Smith argues that the Sentencing Commission
did issue Amendment 787, which did amend Guideline §
5G1.3 (in various spots) to make clear that federal courts
could consider running a federal sentence concurrently to an
anticipated states sentence, not just to an
already-existing, undischarged state sentence. See
Supp. to Appx. C, Amendment 787. When the state sentence is
premised, or will be premised, on § 1B1.3 relevant
conduct, then the Guidelines actually require (though overall
the Guidelines are advisory), in some instances, a concurrent
sentence. But Smith cannot rely on Amendment 787 to navigate
around the finality of § 3582(c) because that amendment
was not deemed retroactively applicable by the Commission-the
amendment is not listed in § 1B1.10. So § 3582(c)
bars the modification that Smith requests.
Amendment 787 could apply, still it would not help Smith.
First, the Court would not have been required (insofar as the
advisory Guidelines could “require” something) to
run Smith's federal sentence concurrently with the state
sentence. The Indiana heroin seizure actually was
not relevant conduct under § 1B1.3, and no one
argued that it was. Instead, it was offered as (and really
is) aggravation under § 3553(a). Second, the Court would
not have exercised its discretion, whether under the
Guidelines or under 18 U.S.C. § 3584(a), to run the
federal sentence concurrently with Indiana sentence. As an
initial matter, Smith had not even been convicted in
the Indiana case, so this Court would not have had a firm
idea of what the Indiana sentence would be premised on. It is
one thing to take into account what an anticipated sentence
when there is a conviction with a relatively stable set of
facts on which the sentence will be premised; it is quite
another to try predicting what set of facts a future sentence
is based on when there is not even a conviction yet.
more, it is not likely that this Court would have tried to
tie the hands of the Indiana judge-who might have wanted (and
indeed, did want)-to impose a consecutive sentence. A federal
court in one state is not likely to know well enough the
local conditions in another state (including a crime's
impact on that community). And the later-sentencing state
court will be in a better position to make the
consecutive-or-not decision simply because the state court
will have more information at that future date. Indeed, that
is the ultimate point: this Court could not bind the
later-sentencing Indiana judge anyway. If a defendant, like
Smith, “serves his federal sentence first, the State
will decide whether to give him credit against his state
sentences without being bound by what the district
court or the Bureau said on the matter.” Setser v.
United States, 132 S.Ct. 1463, 1471 (2012) (emphasis
the pending motions, R. 146, R. 147, are denied. The status