NONPRECEDENTIAL DISPOSITION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 September 30, 2009*
Decided November 13, 2009
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09‐2023
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:99 CR 497
PAUL KELLY,
Defendant‐Appellant. Amy J. St. Eve,
Judge.
O R D E R
Paul Kelly organized a drug conspiracy to smuggle heroin and cocaine into the
United States using young women and babies as his drug mules. Kelly arranged at least
seven trips to Panama in late 1998 and early 1999 to obtain the drugs. U.S. Customs stopped
*
This successive appeal has been submitted to the original panel pursuant to Internal
Operating Procedure 6(b). The panel has concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 09‐2023 Page 2
one of Kelly’s couriers in May 1999, discovered the drugs, and through her cooperation
arrested Kelly. After his first plea was declared null and void, see United States v. Kelly, 337
F.3d 897 (7th Cir. 2003), Kelly pleaded guilty a second time to conspiracy to import cocaine
and heroin into the United States in violation of 21 U.S.C. § 963 and was sentenced to 192
months in prison.
Five years later, Amendment 709 to the United States Sentencing Guidelines changed
the rule under which courts determine whether prior sentences are counted separately for
the purpose of calculating criminal history. U.S.S.G. § 4A1.2(a)(2), Supp. to App. C 235
(2008) (Amendment 709). Under the old rule, prior offenses were counted as a single
sentence if they were consolidated for sentencing; under the new rule, prior offenses are
counted as a single sentence if the sentence was imposed on the same day. See United States
v. Alexander, 553 F.3d 591, 591‐92 (7th Cir. 2009). Under either rule, offenses are counted
separately if there is an intervening arrest. U.S.S.G. § 4A1.2(a)(2).
On July 10, 2008, Kelly moved to have his sentence reduced pursuant to 18 U.S.C.
§ 3582(c)(2), invoking Amendment 709. Kelly asks the district court to modify his sentence
because he was sentenced on the same day for two of the offenses that contributed to his
category VI criminal history. He asserts that Amendment 709 gives him a right to have the
two offenses counted as one. The district court denied the motion on April 6, 2009.
Section 3582(c)(2) permits a district court to reduce a defendant’s sentence if his
sentence was based on a guidelines range that has subsequently been lowered and the
reduction would be consistent with the Sentencing Commission’s policy statements. See
United States v. Forman, 553 F.3d 585, 588 (7th Cir. 2009). But, as U.S.S.G. § 1B1.10(a)(2)(A)
makes clear, a district court may modify a sentence only if the amendment is expressly
made retroactive. Because Amendment 709 was not made retroactive by the Sentencing
Commission and does not clarify the guideline, it is not a basis for reduction under
§ 3582(c)(2). See Alexander, 553 F.3d at 592‐93. And, in any event, even if Amendment 709
applied retroactively, it would not help Kelly because his two offenses were separated by an
intervening arrest. See U.S.S.G. § 4A1.2(a)(2).
Kelly also argues that under United States v. Booker, 543 U.S. 220 (2005), the district
court cannot treat the Guidelines as mandatory for the purpose of § 3582(c)(2). This court
foreclosed that argument in United States v. Cunningham, 554 F.3d 703 (7th Cir. 2009), cert.
denied, 129 S.Ct. 2826 (2009). We see no reason to reopen it here.
Because the district court properly concluded that it lacked authority to reduce
Kelly’s sentence, we AFFIRM its judgment.