NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 24, 2013*
Decided July 26, 2013
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 13‐1596
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 07‐CR‐20038
SYLVESTER HICKS, Michael P. McCuskey,
Defendant‐Appellant. Judge.
O R D E R
Sylvester Hicks appeals from the denial of his motion under 18 U.S.C. § 3582(c)(2) to
reduce his prison sentence based on a retroactive decrease in the base offense levels for
crack‐cocaine offenses. But that change did not benefit Hicks because his imprisonment
range was calculated under the career‐offender guideline. We thus affirm the judgment.
*
After examining the parties’ briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
Page 2
In 2007 Hicks pleaded guilty to one count of possessing crack with intent to
distribute, 21 U.S.C. § 841(a)(1) (2006 & Supp. I 2007). The district court found that Hicks
was accountable for 50 to 150 grams of crack, which at that time corresponded to a base
offense level of 30 under the Chapter 2 guideline presumptively applicable to violations of
§ 841(a)(1). See U.S.S.G. § 2D1.1(c)(5) (2007). But his lengthy criminal history made Hicks a
career offender, which meant instead a base offense level of 37, see 21 U.S.C.
§ 841(b)(1)(A)(iii) (2006 & Supp. I 2007); U.S.S.G. § 4B1.1(b)(A) (2007). After a 3‐level
reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1 (2007), Hicks’s total offense
level of 34 and criminal history category of VI yielded a guidelines imprisonment range of
262 to 327 months. The district court imposed a sentence of 262 months.
In 2012 Hicks filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) based
on amendments 748 and 750 to the guidelines, which together retroactively lowered the
offense levels for most crack offenses. See U.S.S.G. App. C, Vol. III 374–85, 391–98 (2011). His
appointed attorney moved to withdraw, explaining that Hicks was sentenced under the
career‐offender guideline, which had not been amended or otherwise affected by any
amendment. The district court agreed, granted the attorney’s motion to withdraw, and
denied Hicks’s § 3582(c)(2) motion.
On appeal Hicks presents a very different contention. As we understand his brief,
Hicks now argues that he is eligible for a sentence reduction because, he asserts, the district
court at his sentencing in 2007 failed to recognize its discretion to disagree with the
imprisonment range that resulted from applying the career‐offender guideline. But, even if
the sentencing court did make that mistake, Hicks could not bring the claim in a motion
under § 3582(c)(2), which concerns only post‐sentencing amendments promulgated and
made retroactive by the Sentencing Commission. See Dillon v. United States, 130 S.Ct. 2683,
2694 (2010); United States v. Jackson, 573 F.3d 398, 400 (7th Cir. 2009). The amendments did
not change the career‐offender guideline, which the district court used to calculate the
imprisonment range. Because Hicks was not “sentenced based on a sentencing range that
has subsequently been lowered by the Sentencing Commission,” he was ineligible for a
reduction in his sentence. 18 U.S.C. § 3582(c)(2); see United States v. Davis, 682 F.3d 596, 610
(7th Cir. 2012); United States v. Griffin, 652 F.3d 793, 803 (7th Cir. 2011); United States v.
Guyton, 636 F.3d 316, 318–19 (7th Cir. 2011).
AFFIRMED