NONPRECEDENTIAL DISPOSITION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 February 4, 2009*
Decided February 5, 2009
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐3198
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. 06‐CR‐286‐002
BILLY BELCHER, J. P. Stadtmueller,
Defendant‐Appellant. Judge.
O R D E R
After Billy Belcher was sentenced for conspiring to distribute crack cocaine, see 21
U.S.C. §§ 846, 841(a)(1), the United States Sentencing Commission retroactively reduced the
base offense levels for some crack offenses. Belcher moved for a sentence reduction under
*
After examining the 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).
No. 08‐3198 Page 2
18 U.S.C. § 3582(c)(2), but the district court concluded that the amendments did not benefit
Belcher and denied his motion. The government concedes that the court erred. We accept
the government’s concession and remand for further consideration.
At sentencing in May 2007 the district court found that Belcher’s relevant conduct
included 486.55 grams of crack and 907.2 grams of marijuana. The court calculated a total
offense level of 31 and a criminal history category of V, resulting in a guidelines
imprisonment range of 168 to 210 months. After noting that the proposed amendments to
U.S.S.G. § 2D1.1 would lower that range to 140 to 175 months, the district court imposed a
term of 156 months. Then in July 2008, after the amendments had become effective and
were made retroactive, Belcher filed, with counsel’s assistance, an unopposed motion to
reduce his sentence under § 3582(c)(2). Belcher argued that because the district court had
imposed a term of imprisonment that was 7% below the low end of his pre‐amendment
range, he should be resentenced to 130 months, or 7% below the low end of his post‐
amendment range. The district court denied Belcher’s motion with the explanation that the
amendments did not change his offense level or guidelines range.
The district court erred in concluding that the amendments did not change Belcher’s
offense level or guidelines range. It appears that the court considered only Amendments
706 and 711, which provided a retroactive two‐level reduction in the offense level for most
crack offenses but not for offenses involving both crack and another controlled substance.
See U.S.S.G., Supp. to App. C, amends. 706, 711 (2007); United States v. Lawrence, 535 F.3d
631, 634 (7th Cir. 2008). The Commission corrected this anomaly with Amendments 715
and 716, effective May 1, 2008, which retroactively apply the two‐level reduction to
combined‐drug offenses as well. See U.S.S.G., Supp. to App. C, amends. 715, 716 (2008).
Under the amended versions of notes 10(B), 10(D), and 10(E) in the commentary to U.S.S.G.
§ 2D1.1, Belcher’s 486.55 grams of crack is converted to its marijuana equivalent, which,
using a conversion rate of 1 gram of crack = 20 kilograms of marijuana, is 9,731 kilograms.
Adding the additional 907.2 grams of marijuana yields a total of roughly 9,732 kilograms.
Under § 2D1.1(c)(3) the base offense level for that quantity was previously set at 34 but
reduced to level 32 by Amendment 715. After a 3‐level reduction for acceptance of
responsibility, see U.S.S.G. § 3E1.1, Belcher’s revised total offense level is 29 and his new
guidelines range is 140 to 175 months.
Although it appears that at sentencing the district court took the proposed
amendments into account even though they were not yet effective, and although the
guidelines themselves discourage the application of a retroactive amendment to reduce a
below‐range sentence imposed under the discretionary authority of United States v. Booker,
543 U.S. 220 (2005), see U.S.S.G. § 1B1.10(b)(2)(B), a further reduction is not prohibited.
Accordingly, we VACATE the judgment and REMAND to the district court to determine
No. 08‐3198 Page 3
whether, in light of Belcher’s new guidelines range, a reduction in his prison sentence is
appropriate.