NONPRECEDENTIAL DISPOSITION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 December 8, 2009*
Decided December 8, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 08‐3660
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:05 CR 124
BEN HICKMAN, JR.,
Defendant‐Appellant. James T. Moody,
Judge.
O R D E R
Ben Hickman pleaded guilty to distributing crack cocaine, see 21 U.S.C. § 841(a)(1),
and in his plea agreement he waived the right to appeal his conviction or sentence. The
district court determined that Hickman was a career offender, see U.S.S.G. § 4B1.1, and
calculated a guidelines imprisonment range of 188 to 235 months. But Hickman had
cooperated with the government, so the court sentenced him to 120 months on the
prosecutor’s motion. See U.S.S.G. § 5K1.1.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2).
No. 08‐3660 Page 2
The Sentencing Commission later amended U.S.S.G. § 2D1.1 to reduce the base
offense level for most crack offenses, and made that change retroactive. U.S.S.G. supp. to
app. C, 221‐26, 253 (2008) (Amendments 706 and 713). On that basis, Hickman asked the
district court to reduce his prison sentence. See 18 U.S.C. § 3582(c)(2). The court refused on
the ground that Hickman was sentenced as a career offender, not under § 2D1.1, and thus
could not benefit from the amendment to that guideline. Hickman appeals this ruling.
The government argues that Hickman’s appeal is foreclosed by his promise in the
plea agreement not to challenge his sentence on “appeal” or in any “post‐conviction
proceeding.” But we explained in United States v. Woods, 581 F. 3d 531 (7th Cir. 2009), that a
motion under § 3582(c)(2) seeks to modify—not overturn—a sentence, and thus an appeal
waiver like the one Hickman accepted does not bar a motion under § 3582(c)(2) or the
appeal of an adverse ruling on that motion. Id. at 533‐37; see also United States v. Monroe, 580
F.3d 552, 556 (7th Cir. 2009).
Hickman argues, as he did in the district court, that he was not sentenced as a career
offender. Even though his prior convictions qualified him as a career offender, Hickman
says his guidelines sentence is based on § 2D1.1 because the judge imposed a prison term
below the career‐offender range. But the district court’s exercise of discretion to go below
the guidelines range resulting from the application of § 4B1.1 does not mean that Hickman’s
sentence was no longer based on that range. See United States v. Poole, 550 F.3d 676 (7th Cir.
2008) (rejecting contention that defendant’s sentence no longer resulted from application of
career‐offender guideline after she received postsentence reduction under FED. R. CRIM. P.
35(b) for substantial assistance). The retroactive change to the base offense levels in § 2D1.1
cannot benefit career offenders, United States v. Welton, No. 08‐3799, 2009 WL 3151162, *2
(7th Cir. Oct. 2, 2009); United States v. Forman, 553 F.3d 585, 589 (7th Cir. 2009) (per curiam),
so the district court could not have lowered Hickman’s sentence.
AFFIRMED.