NONPRECEDENTIAL DISPOSITION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 January 29, 2009
Decided February 12, 2009
Before
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐3815
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff‐Appellee, District Court for the
Western District of Wisconsin.
v.
No. 06 CR 56
ANDRE FISHER,
Defendant‐Appellant. Barbara B. Crabb, Chief Judge.
ORDER
Andre Fisher entered a guilty plea to a charge of possession with the intent to
distribute more than 5 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). He
was sentenced to 210 months in prison. In his appeal from the sentence, we recognized
that his sentencing range would have been significantly lower were it not for the 100:1
ratio, crack to powder cocaine, as called for in the version of United States Sentencing
Guidelines, in effect when Fisher’s sentence was imposed, in the days before
Kimbrough v. United States, 128 S. Ct. 558 (2007). We remanded the case for
No. 08-3815 Page 2
consideration of a modification of the sentence or, alternatively, for resentencing under
Kimbrough. United States v. Fisher, C.A. 06‐3037 (7th Cir. 2008). Prior to our decision,
Fisher filed a pro se motion in the district court for a reduction of his sentence, pursuant
to 18 U.S.C. § 3582(c). He requested that the court reduce his sentence to 120 months in
prison. Fisher’s sentence was reduced to a term of 150 months, and he once again
appeals.
His appointed counsel moved to withdraw because he could not identify any
nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 744 (1967).
Fisher responded to the request to withdraw, see Cir. R. 51(b). We agree with counsel
that there are no nonfrivolous issues, but we comment on one matter raised in Fisher’s
response. See United States v. Schuh, 289 F.3d 968 (7th Cir. 2002).
The issue Fisher raises grows out of one statement‐‐one among the many‐‐made
by the district judge. She said,
I am concerned that although you have a substance abuse
problem, you still have not volunteered for the 500‐hour
residential drug abuse program offered by the Bureau, and I
hope that you do that.
Fisher points out, correctly according to Bureau of Prisons Policy Statement
5330.10, paragraph 5.4.1 (4), that “[o]rdinarily, the inmate must be within thirty‐six
months of release” to be eligible for the program. Under his original sentence, Fisher
says that his projected release date was in 2021, making him not yet eligible for the 500‐
hour residential program.
At a hearing on the motion to reduce the sentence, the judge applied the
retroactive crack amendment which lowered Fisher’s base offense level from 34 to 32
under U.S.S.G. § 2D1.1(c)(4) for conduct involving 150 to 500 grams of crack cocaine.
Then the court applied a 3‐level reduction for acceptance of responsibility and a 2‐level
increase for possession of a dangerous weapon. Fisher’s offense level then was 31. He
was placed in criminal history category V. There were no objections to these calculations
in the district court, nor is there here. The properly calculated guidelines range is 168 to
210 months. The only question, then, is whether the sentence imposed was reasonable.
No. 08-3815 Page 3
The sentence was below the guideline range and, at the original sentencing at
least, the question as to how much of a variance from the guideline range is appropriate
is a matter on which we give deference to the district judge and her evaluation of the
factors under 18 U.S.C. § 3553. Gall v. United States, 128 S. Ct. 586 (2007); United States
v. Carter, 538 F.3d 784 (7th Cir. 2008). When the sentence is imposed pursuant to § 3582,
however, we have recently determined that the court’s discretion is cabined and, under
most circumstances, § 3582 does not allow a district judge to impose a sentence below
the new guideline range. See United States v. Cunningham, ___ F.3d ___, ___ WL ___
(7th Cir. 2009). Fisher’s new sentence is below the guideline range. However, there was
no objection from the government to the sentence imposed, and therefore we GRANT
counsel’s motion to withdraw and DISMISS this appeal.