In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2329
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B RAD T AYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00-40101-05-GPM—G. Patrick Murphy, Judge.
S UBMITTED N OVEMBER 23, 2010 —D ECIDED D ECEMBER 10, 2010
Before K ANNE, E VANS, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Brad Taylor appeals pro se
the denial of his motion under 18 U.S.C. § 3582(c)(2) for
a reduction of his crack cocaine sentence. The district
court dismissed his motion for lack of subject matter
After examining the briefs and the record, we have con-
cluded that oral argument is unnecessary. Thus, the appeal is
submitted on the briefs and the record. See F ED . R. A PP .
P. 34(a)(2)(C).
2 No. 10-2329
jurisdiction. We affirm the denial of relief. We conclude
that the district court had subject matter jurisdiction
to consider the request, but that Taylor is not eligible
for relief because the relevant retroactive amendment
to the Sentencing Guidelines did not actually have
the effect of lowering the sentencing range applicable
to him, as required by § 3582(c)(2).
This case has a lengthy history. In 2001 a jury found
Taylor guilty of conspiring to distribute and to possess
with intent to distribute both cocaine and cocaine base,
see 21 U.S.C. § 846, and of distributing cocaine, see
21 U.S.C. § 841(a)(1). At sentencing the district court
found that his offense involved 2.15 kilograms of crack
cocaine, resulting at the time in a base-offense level of
38. See U.S.S.G. § 2D1.1 (2000). Although Taylor qualified
as a career offender under § 4B1.1 (corresponding to an
offense level of 37), the court applied the higher offense
level of 38 assigned by the drug-quantity guidelines.
This offense level and Taylor’s criminal-history category
of VI yielded a guideline range of 360 months to life.
The court sentenced him to 377 months. We affirmed
his conviction and sentence. United States v. Moss, 57
F. App’x 704 (7th Cir. 2003).
In 2004 Taylor filed a motion for relief under 28 U.S.C.
§ 2255. The district court denied the motion, as well as
Taylor’s subsequent request for a certificate of appeal-
ability. We also denied his request for a certificate of
appealability. Taylor v. United States, No. 05-4735 (7th
Cir. Mar. 31, 2006).
The United States Sentencing Commission then retro-
actively reduced the offense levels for crack cocaine
No. 10-2329 3
offenses, effective in 2008, through Guideline Amend-
ments 706 and 713. Taylor asked the district court to
appoint counsel to help him prepare a § 3582(c)(2)
motion to take advantage of the retroactive reduction.
The court appointed counsel, but instead of helping
Taylor file such a motion, counsel moved to withdraw,
asserting that he could not identify a nonfrivolous argu-
ment that Taylor qualified for a reduced sentence.
Counsel noted that Taylor, as a career offender, could
not benefit from Amendments 706 and 713. The court
agreed with counsel that Taylor was not eligible for a
sentence reduction and granted the motion to withdraw.
In 2009 Taylor filed a self-styled “Motion to Correct
Illegal Sentence Nunc Pro Tunc,” challenging the dis-
trict court’s determination at sentencing that he qualified
as a career offender. The court denied the motion,
noting that Taylor’s sentence was entered correctly and
that the validity of his sentence could not be challenged
under a nunc pro tunc motion. The court also concluded
that, to the extent the motion could be construed as
a motion under 28 U.S.C. § 2255, it would be unsuc-
cessful because the one-year statute of limitations had
passed. In April 2010, Taylor appealed the denial of his
motion. The district court construed the appeal as a
request for a certificate of appealability, which it denied.
In May 2010, Taylor moved the district court to reduce
his sentence under § 3582(c)(2) in light of Amendments
706 and 713. His relevant conduct, he argued, involved
less than 4.5 kilograms of crack, the new threshold set
by the amendment for the highest base-offense level of
4 No. 10-2329
38. He argued his offense level should be reduced from
38 to 36. The district court dismissed the motion for lack
of jurisdiction, explaining, among other things, that
Taylor had not obtained a certificate of appealability.
On appeal Taylor argues that the district court erred in
dismissing his § 3582(c)(2) motion for lack of jurisdiction
because no certificate of appealability was required.
Taylor is correct; motions under § 3582(c)(2) are not
collateral attacks on the original sentence, and thus an
appeal of their denial does not require a certificate of
appealability. See United States v. Woods, 581 F.3d 531,
536 (7th Cir. 2009) (guilty plea waiving right to bring
collateral challenge to sentence did not bar § 3582(c)(2)
motion); United States v. Monroe, 580 F.3d 552, 557-58
(7th Cir. 2009) (same).
However, we may affirm the judgment of the district
court on any ground supported in the record, e.g.,
Williams v. Fleming, 597 F.3d 820, 823 (7th Cir. 2010), and
here Taylor simply does not qualify for relief under
§ 3582(c)(2). It is true as a general rule that Amendments
706 and 713 did not affect offenders who were sentenced
as career offenders under U.S.S.G. § 4B1.1. See, e.g.,
United States v. Forman, 553 F.3d 585, 589 (7th Cir. 2009).
But the issue here is a little more subtle. This is an
unusual case in which the offense level for the offense
of conviction (38) was even higher than the applicable
offense level for a career offender (37). The offense
level used in Taylor’s original sentence therefore was
based on the drug quantities in § 2D1.1, which were
amended retroactively. If Taylor’s guideline range had
No. 10-2329 5
been calculated under the lower, amended guidelines, the
career-offender guideline would have trumped the drug-
quantity guideline and would have provided the
higher applicable offense level of 37.
The problem for Taylor is that the applicable guide-
line range for criminal history category VI and offense
levels 37 and 38 is exactly the same: 360 months to life in
prison. We conclude that an offender in this unusual
situation is not eligible for relief under § 3582(c)(2). Relief
under the statute is not available when a retroactive
amendment “does not have the effect of lowering
the defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10(a)(2)(B).
We agree with the Eighth Circuit’s resolution of this
issue in United States v. Washington, 618 F.3d 869 (8th
Cir. 2010). Washington qualified as a career offender
subject to an offense level of 37, but he was sentenced
using the higher adjusted offense level of 38 from the
drug quantity table. When he sought relief under
§ 3582(c)(2), the district court recognized that Amend-
ment 706 reduced his offense level from 38 to 36, but
that the higher career-offender offense level of 37
would then apply, providing the same range of 360
months to life. Because Amendment 706 did not have
the effect of lowering Washington’s guideline range, the
district court determined that he was not eligible for a
sentence reduction under § 3582(c)(2).
The Eighth Circuit affirmed because applying the
amended guidelines did not actually reduce the appli-
cable guideline range. 618 F.3d at 873. As in that case,
6 No. 10-2329
Amendment 706 reduced Taylor’s drug-quantity base-
offense level from 38 to 36, but did not affect his career-
offender offense level of 37. Thus, Taylor’s guideline range
remained the same: 360 months to life. He simply was not
eligible for a sentence reduction.
Finally, during the briefing in this case, Congress
enacted the Fair Sentencing Act of 2010, which essen-
tially reduced the statutory 100-to-1 powder/crack sen-
tencing ratio to approximately 18-to-1. Taylor argued
in his reply brief (the first brief he filed after the enact-
ment) that applying the new statutory ratio would
lower his base-offense level even further. This circuit
has held, however, that the new act does not apply retro-
actively, so Taylor cannot benefit from its enactment.
United States v. Bell, ___ F.3d ___, ___, 2010 WL 4103700,
at *10 (7th Cir. Oct. 20, 2010).
The judgment of the district court denying relief
under 18 U.S.C. § 3582(c)(2) is A FFIRMED.
12-10-10