NONPRECEDENTIAL DISPOSITION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 May 27, 2009
Decided May 28, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐3738
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. 00‐30023‐001‐WDS
LARRY MOSBY, William D. Stiehl,
Defendant‐Appellant. Judge.
O R D E R
Larry Mosby pleaded guilty to several drug crimes involving more than 50 grams of
crack cocaine, see 21 U.S.C. §§ 846, 841(a)(1), as well as a single count of possessing a firearm
to further a drug offense, see 18 U.S.C. § 924(c). He has been serving time since June 2000,
but after the Sentencing Commission retroactively reduced the base offense level for most
crack offenses, Mosby moved in the district court for a sentence reduction under 18 U.S.C.
§ 3582(c)(2). The district court denied the motion, and Mosby filed a notice of appeal, but
his appointed lawyer now seeks to withdraw under Anders v. California, 386 U.S. 738 (1967),
because she is unable to discern a nonfrivolous issue to pursue. Counsel’s supporting brief
is facially adequate, and Mosby did not respond to our invitation under Circuit Rule 51(b)
No. 08‐3738 Page 2
to comment on counsel’s submission. We limit our review to the potential issue identified
in counsel’s brief. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
The probation officer who prepared Mosby’s presentence report estimated that the
quantity of crack exceeded 10 kilograms. Using the 1998 version of the sentencing
guidelines, the probation officer recommended a base offense level of 38, which applied to
anyone possessing at least 1.5 kilograms of crack. See U.S.S.G. § 2D1.1(c)(1) (1998). A three‐
level reduction for acceptance of responsibility decreased Mosby’s total offense level to 35,
see id. § 3E1.1, which, combined with a criminal history category of I, yielded a guidelines
imprisonment range for the drug offenses of 168 to 210 months’ imprisonment. At
sentencing Mosby did not object to the amount of crack or the guidelines range. The district
court sentenced him to 168 months’ imprisonment for the drug offenses plus a consecutive
60‐month term on the § 924(c) count. But the government later moved for a reduction
below the statutory minimum, see FED. R. CRIM. P. 35(b), and the court decreased Mosby’s
sentence to 108 months for the drug offenses, which is below the statutory minimum of 120
months, see 21 U.S.C. § 841(b)(1)(A), and 36 months on the § 924(c) count, which is also
below the statutory minimum of 60 months.
The Sentencing Commission has since retroactively lowered the base offense levels
for crack offenses involving less than 4.5 kilograms. That change did not affect amounts of
4.5 kilograms or more, which still carry a base offense level of 38. See U.S.S.G. § 2D1.1,
Supp. to App. C at 226‐31 (2007) (Amendment 706), Supp. to App. C at 253 (2008)
(Amendment 713). Mosby, then, could not benefit from the lower levels, and so the district
court denied his motion.
In her Anders submission counsel considers arguing that the district court should
have reevaluated the amount of crack when ruling on Mosby’s motion under § 3582(c).
Counsel theorizes that Mosby might have objected at sentencing to the probation officer’s
10‐kilogram calculation if he had known that the Sentencing Commission would
retroactively reduce the base offense levels for amounts under 4.5 kilograms. Counsel,
though, correctly rejects this potential argument as frivolous. Because Mosby’s sentence
was under the statutory minimum, he could not obtain a further reduction under § 3582(c).
See United States v. Forman, 553 F.3d 585, 588 (7th Cir. 2009); United States v. Pool, 550 F.3d
676, 678‐80 (7th Cir. 2008). A proceeding under § 3582(c) is “not a do‐over” of the
sentencing hearing, United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999), and a district
court evaluating a motion under that section is limited to applying retroactive amendments
“and shall leave all other guideline applications decisions unaffected,” U.S.S.G.
§ 1B1.10(b)(1).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.