NONPRECEDENTIAL DISPOSITION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 5, 2009*
Decided March 13, 2009
Before
KENNETH F. RIPPLE, Judge
ILANA DIAMOND ROVNER, Judge
DIANE P. WOOD, Judge
No. 08‐2659
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
v. Eastern Division.
VERNELL KELLY, No. 05 CR 269
Defendant‐Appellant.
Elaine E. Bucklo,
Judge.
ORDER
Defendant‐Appellant Vernell Kelly was convicted by a jury on one count
alleging that he possessed a firearm in or affecting commerce following a felony
conviction, see 18 U.S.C. § 922(g)(1), and two counts charging him with possessing
crack cocaine with the intent to distribute, see 21 U.S.C. § 841(a)(1). The district court
*
Pursuant to Seventh Circuit Internal Operating Procedure 6(b), this appeal was submitted to the
panel of judges that disposed of Kelly’s direct appeal of his conviction and sentence. See United
States v. Kelly, 519 F.3d 355 (7th Cir. 2008). Neither party has included in its brief a statement
indicating that oral argument is necessary, see Fed. R. App. P. 34(a)(1) and Circuit Rule 34(f), and
upon review of the briefs and the record and consideration of the standards set forth in Fed. R.
App. 34(a)(2), the panel has determined that oral argument is unnecessary to the resolution of this
appeal. The appeal was therefore submitted on the briefs and the record.
No. 08‐2659 Page 2
determined that Kelly’s criminal history rendered him a career offender for
sentencing purposes. See U.S.S.G. § 4B1.1. Kelly’s status as a career offender
specified an offense level of 34 – coincidentally the same offense level independently
called for by the amount of crack cocaine he possessed along with the other
characteristics of his offenses – and placed him in the highest criminal history
category. The U.S. Sentencing Guidelines advised a total sentence in the range of 262
to 327 months. But the district court decided that a below‐Guidelines sentence of 235
months was appropriate, citing as a mitigating circumstance the fact that Kelly had
spent most of his youth as a ward of the state and “never had any role models and
never had much of any opportunity.” R. 85‐9 at 21‐22. The court therefore ordered
him to serve concurrent prison terms of 120 months for the felon‐in‐possession
offense (the statutory maximum) and 235 months for the narcotics offenses. Just
over a year ago, we affirmed Kelly’s conviction and his designation as a career
offender in a published decision, United States v. Kelly, 519 F.3d 355 (7th Cir. 2008).
While Kelly’s direct appeal of his conviction and sentence was pending, he
filed pro se motions in the district court seeking a reduced sentence pursuant to 18
U.S.C. § 3582(c)(2). That statute grants the district court the discretion to reduce a
term of imprisonment previously imposed on a defendant where that term was
based on a sentencing range that was subsequently reduced by the U.S. Sentencing
Commission, so long as the reduction is consistent with the applicable policy
statements of the Commission. The relevant policy statements are found in section
1B1.10 of the Sentencing Guidelines. Effective November 1, 2007, Amendment 706
to the Sentencing Guidelines reduced the base offense level applicable to offenses
involving crack cocaine by two levels, thus resulting in lower sentencing ranges for
such offenses, and on December 11, 2007, the Commission added Amendment 706 to
the list of amendments set forth in Guidelines section 1B1.10(c) which may be
applied retroactively, effective as of March 3, 2008. Based on this retroactive change,
Kelly believed that he was entitled to both a two‐level reduction in his offense level
and de novo re‐sentencing.
After the Federal Defender stepped in to represent Kelly on his motions and
the district court solicited briefing as to Kelly’s eligibility for relief, the court denied
his request for a reduced sentence, concluding that Kelly’s status as a career offender
deprived the court of authority to reduce his sentence notwithstanding the
Sentencing Commission’s decision to retroactively reduce the offense level for the
possession (with the intent to distribute) of crack cocaine. R. 107, 108. Guidelines
section 1B1.10, which as we have mentioned sets forth the Sentencing Commission’s
statements of policy regarding sentencing modifications, states that it is not
consistent with Commission policy for a court to reduce a previously‐imposed
prison term based on a retroactive reduction in the defendant’s offense level if the
reduced offense level does not have the effect of lowering the defendant’s applicable
Guidelines sentencing range. U.S.S.G. § 1B1.10(a)(2)(B). Application Note 1(A) (ii)
reinforces this limitation, explaining that a reduction to a defendant’s offense level
No. 08‐2659 Page 3
pursuant to a retroactive amendment to the Guidelines is not appropriate when,
although the amendment “is applicable to the defendant, . . . the amendment
[nevertheless] does not have the effect of lowering the defendant’s applicable
guideline range because of the operation of another guideline or statutory provision
(e.g., a statutory mandatory minimum term of imprisonment).” In this case, as the
district court recognized, although Amendment 706 would have lowered the offense
level governing Kelly’s cocaine offenses, the career offender guideline still would
have specified an offense level of 34. See U.S.S.G. § 4B1.1.
Kelly appeals. Although he acknowledges that Guidelines section 1B1.10 and
its application notes by their terms render him ineligible for a sentence reduction
pursuant to Amendment 706, he contends that section 1B1.10 cannot be treated as
binding in the wake of the Supreme Court’s decisions in United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005), which rendered the Sentencing Guidelines advisory,
and Kimbrough v. United States, ‐‐‐ U.S. ‐‐‐, 128 S. Ct. 558 (2007), which held in accord
with Booker that the Guidelines relating to crack cocaine offenses are advisory. Thus,
he maintains that the district court has the discretion to reduce his sentence
notwithstanding his status as a career offender. He relies principally on the Ninth
Circuit’s decision in United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007), in support of
this view. But Kelly’s argument is foreclosed by our recent decisions in United States
v. Forman, 553 F.3d 585 (7th Cir. 2009) (per curiam), and United States v. Cunningham,
554 F.3d 703 (7th Cir. 2009).
In Forman as in this case, the district court had denied the defendant’s request
for an Amendment 706 reduction in his offense level based on his status as a career
offender. We affirmed that decision, noting that although Amendment 706 had
reduced the offense level for Forman’s crack‐cocaine offense, his status as a career
offender independently would have placed him at the (higher) offense level of 34
and boosted his criminal history category to the highest level of VI. “Amendment
706 provides no benefit to career offenders,” we observed. 553 F.3d at 589.
“Forman’s guidelines range was 262 to 327 months before Amendment 706, and it
remains so. Here, ‘the amendment does not have the effect of lowering the
defendant’s applicable guidelines range because of the operation of another
guideline’—namely, the career offender provision.” Id. at 590 (quoting U.S.S.G. §
1B1.10, cmt. n. 1(A)).
In Cunningham, we rejected the notion that it is contrary to Booker for a court
to adhere to the limitations on retroactive sentencing relief set forth in Guidelines
section 1B1.10. By virtue of Amendment 706, the defendants in Cunningham were
eligible for, and had been granted, retroactive two‐level reductions in their offense
levels and commensurate reductions in their within‐Guidelines sentences. But
pursuant to the terms of Guidelines sections 1B.10(a)(3) and 1B1.10(b)(2)(A), which
specify that a proceeding under section 3582(c)(2) is not a full resentencing and that a
district court in such a proceeding may not reduce the defendant’s sentence below
No. 08‐2659 Page 4
the minimum sentence called for by the amended Guidelines range, the district court
had declined their requests for de novo resentencing and consideration of below‐
Guidelines sentences. We affirmed. We noted that in contrast to a complete
sentencing or resentencing, a proceeding under section 3582(c)(2) is “a one way
lever” that permits a court to reduce a defendant’s sentence or leave it unchanged
but not to increase it. 554 F.3d at 707. Thus, in contrast to the situation addressed by
Booker, a defendant does not face the prospect of an increased penalty based on
findings rendered by the court rather than a jury. Id. at 706‐07. Moreover, “[t]he text
of section 3582(c)(2) makes clear that Congress intended section 3582(c)(2)
modifications to comport with the Commission’s policy statements,” and the policy
statements set forth in Guidelines section 1B1.10 unequivocally precluded the de
novo resentencing and the possibility of a below‐Guidelines sentence that the
defendants were seeking. Id. at 707. To treat the provisions of section 1B1.10 as
merely advisory would thus be to ignore the express proscription of Congress set
forth in section 3582(c)(2). Id.
This last point bears elaboration, as it is the most important basis for
our decision today. Original sentencing proceedings and sentence
modification proceedings are legally distinct from one another.
Original proceedings are governed by 18 U.S.C. § 3553 (a statute that
was partially excised in Booker), while sentence modification
proceedings are governed by 18 U.S.C. § 3582(c)(2). Contrary to the
defendants’ contention, there is no “inherent authority” for a district
court to modify a sentence as it pleases; indeed a district court’s
discretion to modify a sentence is an exception to the statute’s general
rule that “the court may not modify a term of imprisonment once it
has been imposed.” See 18 U.S.C. § 3582(c). When Congress granted
district courts discretion to modify sentences in section 3852(c)(2), it
explicitly incorporated the Sentencing Commission’s policy statements
limiting reductions. See United States v. Walsh, 26 F.3d 75, 77 (8th Cir.
1994) (“Congress has made the policy statements set forth in Section
1B1.10 the applicable law for determining whether a district court has
the authority to reduce a sentence in this situation.”) Thus, the
Commission’s policy statements should for all intents and purposes be
viewed as part of the statute. The policy statements make clear that
section 3582(c)(2) proceedings are not full resentencings and may not
result in a sentence lower than the amended guideline range (unless
the defendant’s original sentence was lower than the guideline range).
See U.S.S.G. §§ 1B1.10(a)(3), 1B1.10(b)(2)(A). This limitation of the
district court’s power is not constitutionally suspect. Having chosen to
create a modification mechanism, Booker does not require Congress to
grant the district court’s unfettered discretion in applying it. . . .
No. 08‐2659 Page 5
554 F.3d at 707‐08 (footnote omitted). Cunningham thus declined to follow Hicks, as
have other circuit courts of appeal. See United State v. Fanfan, ‐‐‐ F.3d ‐‐‐, 2009 WL
531281, at *3‐*4 (1st Cir. Mar. 4, 2009); United States v. Melvin, ‐‐‐ F.3d ‐‐‐, 2009 WL
236053, at 3‐4 (11th Cir. Feb. 3, 2009), pet’n for cert. filed (U.S. Feb. 10, 2009) (No. 08‐
8664); United States v. Starks, 551 F.3d 839, 841‐43 (8th Cir. 2009); United States v.
Dunphy, 551 F.3d 247, 252‐56 (4th Cir. 2009); United States v. Rhodes, 549 F.3d 833, 839‐
41 (10th Cir. 2008), pet’n for cert. filed (U.S. Jan. 21, 2009) (No. 08‐8318).
Forman and Cunningham dispose of Kelly’s arguments. Forman, in accord
with the policy statements set forth in Guidelines section 1B1.10, holds that the
sentencing relief that Amendment 706 otherwise makes available to those convicted
of crack offenses is not available to career offenders, as their sentencing levels
ultimately are driven by the career offender guideline. Cunningham in turn holds
that treating section 1B1.10’s policy statements as binding is fully consistent with
Congress’s directive in section 3582(c)(2) and with Booker.
We therefore AFFIRM the denial of Kelly’s motions for reduction of his
offense level and resentencing pursuant to section 3582(c)(2).