NONPRECEDENTIAL DISPOSITION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 March 11, 2009*
Decided March 18, 2009
Before
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐2786
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Western Division.
v.
99 CR 50004
MICHAEL HILL,
Defendant‐Appellant. Philip G. Reinhard,
Judge.
ORDER
In 1999 Michael Hill pleaded guilty to possessing with intent to distribute cocaine
base, see 21 U.S.C. § 841(a)(1), using a firearm during a drug trafficking crime, see 18 U.S.C.
*
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. 08‐2786 Page 2
§ 924(c), and possession of a firearm by a felon, see id. § 922(g)(1). Based on Hill’s status as a
career offender and an armed career criminal, see 18 U.S.C. § 924(e); U.S.S.G. §§ 4B1.1, 4B1.4,
the district court imposed a term of 216 months’ imprisonment for the possession offenses
and added a 60‐month consecutive sentence for using the firearm, see § 924(c), for a total of
276 months. In 2007 the Sentencing Commission retroactively reduced the base offense
level for crack offenses under U.S.S.G. § 2D1.1, see U.S.S.G., Supp. to App. C, amend. 706
(2007), and Hill, seeking to take advantage of the changes, moved to reduce his sentence
under 18 U.S.C. § 3582(c)(2). He also asked the district court to appoint an attorney to
represent him. The court denied both motions, explaining that the recent guidelines
amendments did not apply to Hill because his sentence was driven by his career‐offender
status, and that he was not entitled to counsel. On appeal Hill also challenges his
consecutive sentence. We affirm.
Hill argues that the district court abused its discretion by refusing to reduce his
sentence based on Amendment 706. Because Hill was sentenced as a career offender and an
armed career criminal, however, the amendment does not lower his applicable guidelines
range, so the district court lacked authority to reduce his sentence at all. See United States v.
Forman, 553 F.3d 585, 589 (7th Cir. 2009); United States v. Poole, 550 F.3d 676, 679 (7th Cir.
2008). Accordingly, Hill had no need for counsel or a hearing, see Forman, 553 F.3d at 590;
United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999); FED. R. CRIM. P. 43(b)(4), and his
argument about the scope of a sentence reduction is irrelevant.
Finally, Hill attempts belatedly to attack his original sentence. He bases this
challenge on a Second Circuit decision holding that a district court cannot impose an
additional, consecutive term of imprisonment for violating § 924(c) if that term would be
shorter than the mandatory minimum required by another count of conviction. See United
States v. Whitley, 529 F.3d 150 (2d Cir. 2008). Here, the 60‐month consecutive term Hill
received for violating § 924(c) was less than the 15‐year mandatory minimum he faced for
being a career offender, see 18 U.S.C. § 924(e). But § 3582(c)(2) cannot be used as a basis to
reopen a sentence on a ground other than a retroactive amendment to the sentencing
guidelines, see Poole, 550 F.3d at 678, and, anyway, Hill forfeited this contention by failing to
raise it in the district court, see United States v. Cannon, 539 F.3d 601, 603 (7th Cir. 2008). In
any event, his argument is foreclosed by our decision in United States v. Easter, 553 F.3d 519,
525‐27 (7th Cir. 2009).
AFFIRMED.