In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2303
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARCHELLO D UNCAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 200-16—Wayne R. Andersen, Judge.
A RGUED JANUARY 20, 2011—D ECIDED A PRIL 22, 2011
Before R IPPLE and H AMILTON, Circuit Judges, and
M URPHY, District Judge.
M URPHY, District Judge. Marchello Duncan appeals
the denial of his motion for a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2). We affirm. The
district court did not abuse its discretion when it found
The Honorable G. Patrick Murphy of the Southern District
of Illinois, sitting by designation.
2 No. 10-2303
that Mr. Duncan was responsible for in excess of 4.5
kilograms of crack cocaine. Accordingly, the district court
correctly concluded that Mr. Duncan was ineligible for
relief because the retroactive amendment to the Sen-
tencing Guidelines did not lower the sentencing range
applicable to him, as is required by § 3582(c)(2).
I. Background
Beginning in approximately 1999 and continuing
until March 2002, Mr. Duncan was a member of a crack
trafficking organization operating in Chicago Heights,
Illinois. The organization, headed by Troy Lawrence,
“sold crack twenty-four hours a day, seven days a
week” from the early 1990s until March 2002. United
States v. Seymour, 519 F.3d 700, 704 (7th Cir. 2008).
Federal investigation of the organization spawned a 26-
defendant, 40-count indictment, in which Mr. Duncan
was charged with conspiracy to possess with intent to
distribute more than 50 grams of cocaine base and more
than 5 kilograms of cocaine powder; and two counts
of distribution of cocaine base within 1000 feet of
an elementary school. Mr. Duncan entered into a plea
agreement, admitting to violation of 21 U.S.C. §§ 841(a)(1),
860(a), 846, and 18 U.S.C. § 2. According to his plea agree-
ment, Mr. Duncan worked for Lawrence’s organization
as “security,” a lookout for law enforcement, and as a
“packman,” selling dime bags of crack cocaine to cus-
tomers. Mr. Duncan was aware of stash locations
where large amounts of crack cocaine were held, and
he attended meetings with organization members, in-
No. 10-2303 3
cluding Troy Lawrence. The plea agreement stated that
Mr. Duncan’s offense involved more than 1.5 kilograms
of cocaine base and that his base offense level was 38,
to which the parties agreed.
The presentence investigation report (“PSR”) prepared
by the United States Probation Office in advance of
Mr. Duncan’s sentencing also concluded that his base
offense level was 38 and that Mr. Duncan was responsible
for 137 kilograms of crack cocaine with the following
rationale:
With regard to the instant offense, the defendant
worked as both packman and security for the Law-
rence Operation from 1999 until his arrest in 2002.
The organization using the most conservative esti-
mates, sold approximately 1,000 “dime” bags of crack
cocaine per day, with each bag containing .15 grams
of crack. Such a calculation results in approximately
150 grams of cocaine sold per day, or approximately
55 kilograms per year. As the defendant’s involve-
ment in the organization lasted for at least 2.5 years,
and the amount of crack cocaine reasonably foreseeable
to the defendant is responsible for at least 137 kilo-
grams of crack cocaine, under the sentencing guide-
lines. [sic]
From Duncan’s base level of 38, he received a 2-level
increase for possession of a dangerous weapon during
the offense, a 2-level increase because the offense
occurred within 1000 feet of an elementary school, and a
3-level reduction for accepting responsibility, resulting
in an offense level of 39.
4 No. 10-2303
At sentencing on September 7, 2005, Mr. Duncan told
the district court that he had read the PSR and discussed
it with his attorney. In response to the court’s question
whether there were “any facts summarizing the offense
behavior to which he has pled guilty in the PSI that you
wish to challenge,” Mr. Duncan’s counsel answered “no.”
The Court responded: “Okay. I will retain the presentence
investigation, direct that if appeal is taken, that coun-
sel on appeal be permitted access to it.” Based on
Mr. Duncan’s cooperation, the government, in its
U.S.S.G. § 5K1.1 motion, recommended a sentence of 174
months (from a guideline range of 262 to 327 months).
Mr. Duncan agreed with that figure for downward depar-
ture, and the Court sentenced Mr. Duncan to 174 months.
On May 6, 2009, Mr. Duncan filed a pro se motion to
modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). The
government responded in opposition to that motion,
arguing that a § 3582 reduction would not reduce
Mr. Duncan’s guideline range. The government argued
that the district court had adopted the PSR at sentencing,
which tagged Mr. Duncan responsible for at least 137
kilograms of crack cocaine. Therefore, under the amended
guideline range, Mr. Duncan’s base offense level would
still be 38. Mr. Duncan (now represented by counsel)
argued that the government agreed to and the district
court had already granted a § 3582(c)(2) motion for re-
duction in sentence for one of his co-defendants, Cameron
Wilson, and that the Court never made a finding that
Mr. Duncan was responsible for more than 4.5 kilograms
of crack cocaine. The district court denied Mr. Duncan’s
motion, stating:
No. 10-2303 5
Defendant was sentenced to 174 months imprisonment.
The base offense level was 38 under the Novem-
ber 2002 edition of the Sentencing Guidelines Man-
ual. Under the revised guidelines defendant’s base
offense level remains at a level 38. At the high end, the
guidelines previously applied a base offense level 38
to a quantity of crack cocaine of 1.5 kilograms or
more. Under the revised guidelines that offense
level now only applies to offenses involving 4.5 kilo-
grams or more of crack cocaine. The factual basis
underlying defendant’s offense shows that he was
involved in the drug conspiracy and accountable for
the distribution of well in excess of 4.5 kilograms.
Therefore there is no basis for a reduction of defen-
dant’s sentence because a base offense level 38 applies
under both the old and revised guidelines. Therefore
defendant’s base offense level remains unchanged
by the sentencing guidelines amendments. For these
reasons, defendant’s motion to reduce sentence is
denied.
II. Discussion
The district court has substantial discretion in its de-
termination of whether to modify a sentence under
§ 3582(c)(2). Section 3582(c)(2) permits a district court to
modify a defendant’s sentence if that defendant “has
been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by
the Sentencing Commission.” 18 U.S.C. § 3582 (c)(2). The
Sentencing Commission did lower the sentencing range
6 No. 10-2303
for some quantities of crack cocaine with Amendment
706. Post-amendment, responsibility for 1.5 to less-than-
4.5 kilograms of crack cocaine merits a base offense level
of 36, not 38. U.S.S.G. § 2D1.1(c). The top base offense level
of 38 now applies only if the defendant is responsible for
4.5 or more kilograms of crack. Where a defendant was
originally sentenced with a base offense level of 38,
section 3582(c)(2) relief is only available if less than 4.5 kilo-
grams of crack is attributable to him. See United States
v. Forman, 553 F.3d 585, 590 (7th Cir. 2009) (“Amendment
706 . . . affects only defendants who are responsible for
distributing fewer than 4.5 kilograms of crack cocaine.”).
The gist of Mr. Duncan’s argument on appeal is that the
district court impermissibly made new findings in the
§ 3582(c)(2) proceeding in order to attribute 4.5 kilo-
grams of crack to him. He claims that the district court
did not adopt the PSR at sentencing, so post-sentencing
reliance on the PSR’s determinations was unfounded.
He argues that the district court ascribed crack cocaine
amounts to him beyond what was reasonably fore-
seeable within his role in the greater conspiracy. He
also contends that the PSR improperly conflated the
amount of crack dealt by the conspiracy at large with
the scope of his individual activity (what he was
“aware of”).
Mr. Duncan argues that § 1B1.10 of the United States
Sentencing Commission Guidelines prohibited the dis-
trict court from making new factual determinations
when it considered his § 3582(c)(2) motion. This is
simply not the case. While it is true that “district courts
No. 10-2303 7
in § 3582(c)(2) proceedings cannot make findings incon-
sistent with that of the original sentencing court,” see
United States v. Woods, 581 F.3d 531, 538 (7th Cir. 2009)
(emphasis added), “nothing prevents the court from
making new findings that are supported by the record
and not inconsistent with the findings made in the
original sentencing determination.” United States v. Hall,
600 F.3d 872, 876 (7th Cir. 2010).
Here, the district court considered the factual bases
underlying Mr. Duncan’s offense and concluded that he
was accountable for at least 4.5 kilograms of crack cocaine.
The record provides more than ample evidence for this
finding. The Lawrence enterprise conservatively sold 150
grams of crack a day. That is 4.5 kilograms in just
one month, and Mr. Duncan was a member of the organi-
zation for over two years.
Mr. Duncan’s attempt to distinguish between what
he was “aware of” as a conspiracy member and what
was “foreseeable to him” is unavailing. He is correct
that for sentencing purposes, a defendant “convicted of
a drug trafficking conspiracy is liable for the reasonably
foreseeable quantity of drugs sold by his or her co-con-
spirators,” Seymour, 519 F.3d at 710-11, and that
“[r]easonable foreseeability refers to the scope of the
agreement that [a defendant] entered into when he
joined the conspiracy, not merely the drugs he may have
known about,” United States v. Hollins, 498 F.3d 622, 630
(7th Cir. 2007). More than 4.5 kilograms of crack was
foreseeable to Mr. Duncan, and his denial is not plausi-
ble. The record is clear that the Lawrence operation
8 No. 10-2303
dealt a staggering amount of crack. Mr. Duncan was
a member of that organization who served as a crack-
salesman, was privy to the stash locations, and was a
participant in high-level meetings. The assertion that
Mr. Duncan could not foresee that more than 4.5 kilo-
grams were involved is baseless. He is “responsible for
the drug quantities sold in furtherance of the conspir-
acy,” and it was well within the discretion of the district
court to find that the amount for which Mr. Duncan
was responsible exceeded 4.5 kilograms. Hall, 600 F.3d
at 876.
Further, Mr. Duncan did not object to the PSR at sen-
tencing. The PSR states that Mr. Duncan is responsible
for at least 137 kilograms of crack cocaine. At oral argu-
ment, Mr. Duncan’s counsel contended that an objection
at sentencing would have been pointless, as Mr. Duncan
had already agreed to an offense level of 38, and be-
cause, at the time, 1.5 kilograms was the highest
quantity demarcating an increase in base offense level.
However, the strategic bases for failing to object to the
PSR do not affect the district court’s ability to refer to
the PSR’s analysis on review of Mr. Duncan’s § 3582(c)(2)
motion. See Hall, 600 F.3d at 876 (“Regardless of whether
[defendant’s] on-the-record withdrawal of his original
objection should be considered a waiver, nothing pre-
vented the district court from adopting the PSR’s pro-
posed 17.1-kilogram finding in connection with the pro-
ceedings on [defendant’s] § 3582(c)(2) motion.”).
Mr. Duncan points out that the PSR is awkwardly
worded. However, he cannot show that the district court
erred in relying on the PSR’s calculation, particularly
No. 10-2303 9
since the PSR’s calculation is amply supported by the
record. See United States v. Artley, 489 F.3d 813, 821 (7th
Cir. 2007) (“[I]t is the defendant’s burden to show that
the PSR is inaccurate or unreliable.”).
Mr. Duncan’s contention that the district court never
adopted the PSR at sentencing does not help him. Re-
sponding to an identical argument in Hall (where the
defendant argued that the district court incorrectly
relied on the PSR figure of 17.1 kilograms of crack), we
explained: “[T]his is another red herring. . .Even if we
were inclined to agree, it would not help [defendant] as
much as he would like. Let’s assume the court never
entered an explicit 17.1-kilogram finding at the original
sentencing; the court was required to determine how
much crack cocaine [defendant] was responsible for in
order to adjudicate his § 3582(c)(2) motion.” Hall, 600
F.3d at 877.
As for the issue of a codefendant’s successful
§ 3582(c)(2) motion, the distinction here is that the gov-
ernment did, in fact, oppose Mr. Duncan’s motion. It is
not for this Court to deduce the rationale for the gov-
ernment’s inconsistent strategy—it is wholly irrelevant
to the district court’s disposition of Mr. Duncan’s mo-
tion. Mr. Duncan participated in a drug conspiracy
that sold at least 4.5 kilograms of crack each month. The
district court did not abuse its discretion by finding that
he was responsible for that amount over the course of
his two-plus year participation in the conspiracy.
10 No. 10-2303
III. Conclusion
We therefore A FFIRM the district court’s denial of
Mr. Duncan’s § 3582(c)(2) motion.
4-22-11