NONPRECEDENTIAL DISPOSITION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 April 20, 2009
Decided December 28, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐4279
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff‐Appellee, District Court for the Eastern
District of Wisconsin.
v.
No. 2:97‐cr‐00225
DERRICK D. TURNER,
Defendant‐Appellant. Rudolph T. Randa,
District Judge.
O R D E R
Because this case presents a pure legal question, the background facts are not
particularly relevant. In 1998, Derrick Turner was convicted of conspiracy to possess with
intent to distribute and possession with intent to distribute crack cocaine and powder cocaine.
He was sentenced to 360 months’ imprisonment as to each count, to run concurrently; Turner
is currently serving this sentence. In June 2008, Turner filed a pro se motion seeking to reduce
his sentence under 18 U.S.C. § 3582(c)(2), which allows a district court to reduce a term of
imprisonment previously imposed on a defendant if the sentencing range for the conviction
was reduced by the Sentencing Commission subsequent to the defendant’s sentencing. This
reduction is contingent on consistency with applicable policy statements, which in this case are
found in U.S.S.G. § 1B1.10. Section 1B1.10(a)(3) provides that “proceedings under 18 U.S.C.
No. 08‐4279 Page 2
3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.”
Section 1B1.10(b)(2)(A) provides that “the court shall not reduce the defendant’s term of
imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term that is less than
the minimum of the amended guideline range determined under subdivision (1) of this
subsection.”
The basis for Turner’s motion is retroactive Amendment 706, which recognized the
disparity in crack and powder cocaine guidelines and reduced the base offense level two levels
for crack cocaine offenses, thereby resulting in a lower sentencing range for a defendant.
Turner’s counsel also filed a motion for sentence reduction. The district court granted the
motions, and reduced Turner’s sentence from 360 months’ imprisonment to 310 months’
imprisonment, a sentence that fell within the amended guidelines range of 292‐365 months.
Turner appealed this reduction, alleging that (1) the binding nature of the policy statements
explicitly referenced in § 3582(c)(2) improperly constrain a district court’s discretion; (2)
applying the mandatory § 3582(c)(2) scheme to pre‐Booker defendants violates the Sixth
Amendment; (3) U.S.S.G. § 1B1.10 violates the Sentencing Commission’s obligation to
promulgate policy statements that are consistent with § 3553(a)(2); and (4) the Supreme Court
cases of United States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85 (2007),
and Gall v. United States, 552 U.S. 38 (2007), permit sentence reductions that fall below the
amended guidelines range under § 3582(c)(2).
Turner first alleges that § 1B1.10 impermissibly cabins a district court’s discretion to
provide sentencing relief. But Turner’s argument is foreclosed by our recent decision in United
States v. Cunningham, 554 F.3d 703 (7th Cir. 2009). In Cunningham, we rejected the argument
that adhering to the limitations of retroactive sentencing relief prescribed in § 1B1.10 was
contrary to Booker. Id. at 707. We noted that unlike a full sentencing proceeding, a proceeding
under § 3582(c)(2) only allows for a downward departure in sentencing adjustments. Significant
to our decision was the fact that original sentencing proceedings and sentence modification
proceedings are legally distinct. “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.’” Id. at 708 (citing 18 U.S.C.
§ 3582(c)).
Further supporting our decision was the idea that because Booker itself focused on
congressional intent, any interpretation of § 3582(c)(2) should do the same. An examination of
congressional intent in § 3582(c)(2) makes it clear that Congress intended § 3582(c)(2) sentence
modifications to comport with the Commission’s policy statements, a result that would be
impossible if in fact Booker rendered the guidelines advisory for purposes of sentence
modifications. Id. Therefore, Turner’s argument that § 1B1.10 impermissibly constrains a
district court’s discretion in sentence modifications proceedings is without merit.
No. 08‐4279 Page 3
Turner’s second argument is that the § 3582(c)(2) scheme violates his Sixth Amendment
rights because Booker requires a jury determination of facts essential to punishment when a
judge seeks to impose a sentence based on those facts. Turner argues that the guidelines cannot
be mandatory in some instances and advisory in others, where the mandatory guidelines will
require resentencing based on facts not initially found by a jury. Our previous discussion about
the distinctive nature of § 3582(c)(2) proceedings forecloses this argument. Again, as we
explained in Cunningham, a full Booker resentencing is not required in § 3582(c)(2) proceedings.
Id. Because “Booker does not apply to the scores of defendants whose sentences were final when
Booker was handed down[,] [i]t would be unfair to allow a full Booker resentencing to only a
subset of defendants whose sentences were lowered by a retroactive amendment.” Id. at 708‐
09.
Turner’s third argument also fails. As we held in Cunningham, § 1B1.10 is entirely
consistent with the Commission’s duty to promulgate provisions that advance the purposes of
§ 3553(a)(2). We noted:
Having chosen to create a modification mechanism, Booker does not require Congress to
grant the district courts unfettered discretion in applying it. Indeed, mandatory minimum
sentences‐‐which cabin the district courts’ discretion with regard to section 3553(a)
factors‐‐have been upheld as constitutional.
Section 3582(c)(2)’s direction that courts “shall consider the factors in Section 3553(a) to
the extent they are applicable” does not undermine our conclusion. It is true that one of
the factors in section 3553(a) is the Guidelines range, which Booker made advisory.
However, section 3582(c)(2) states that a district court considers the section 3553(a) factors
in making a reduction “consistent with the applicable policy statements issued by the
Sentencing Commission.” There need not be a conflict: the statute can be viewed as
requiring district courts to consider the section 3553(a) factors in deciding whether and
to what extent to grant a sentence reduction, but only within the limits of the applicable
policy statements.
Id. at 708 (citations omitted). Therefore, Turner’s third argument too was disposed of in
Cunningham.
Finally, Turner argues that Booker, Kimbrough, and Gall should be read to allow sentences
below the amended guideline range in the context of § 3582(c)(2) motions. This argument fails
for two reasons. First, as we held in Cunningham, Booker is inapplicable in the § 3582(c)(2)
context. Id. at 707 & n.2. Second, none of these three cases referred to § 3582(c)(2) proceedings,
and as we explained in Cunningham, because the context of sentencing proceedings are legally
distinct from the context of sentencing reductions, these cases are inapplicable in the
No. 08‐4279 Page 4
§ 3582(c)(2) context. Id. at 707‐08.
Because we addressed and dismissed all of the arguments presented by Turner in
Cunningham, we affirm the district court’s reduction of Turner’s sentence to 310 months’
imprisonment under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10.