NONPRECEDENTIAL DISPOSITION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 20, 2016*
Decided October 21, 2016
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16‐1879
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 11–CR–63
MAURICE DAVIS,
Defendant‐Appellant. Pamela Pepper,
Judge.
O R D E R
An amendment to the Sentencing Guidelines in 2014 has produced this successive
appeal regarding a term of imprisonment imposed on the defendant/appellant, Maurice
Davis. Although the history of this case is somewhat complicated, the effect of the
* 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. 16‐1879 Page 2
Guidelines amendment is straightforward, and we affirm the decision of the district
court to deny reconsideration of the reduced sentence imposed on July 20, 2015.
Maurice Davis pled guilty on October 19, 2011 to a one–count superseding
information charging him under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846 with
conspiring to distribute at least 28 grams of cocaine base.
On April 17, 2013, at the conclusion of a lengthy sentencing proceeding, the district
court determined that the relevant conduct attributable to Davis for the offense of
conviction was an amount of crack cocaine greater than 196 grams but less than 280
grams. This translated under the Sentencing Guidelines to a base offense level of 30. The
district court then found acceptance of responsibility by Davis and revised its findings
for imposing sentence to an offense level of 27. Level 27, when combined with a criminal
history category of VI, resulted in a sentencing range of 130 to 162 months.
On that date, April 17, 2013, the district court imposed a below‐Guidelines sentence
of 120 months’ imprisonment. Davis’s sentence of 120 months was affirmed by this court
on appeal on August 1, 2014. United States v. Davis, 761 F.3d 713 (7th Cir. 2014).
Three months later, on November 1, 2014, the United States Sentencing Commission
issued Amendment 782, which had the effect of lowering Davis’s sentencing range to
110 to 137 months. In light of the amendment, Davis filed an unopposed motion seeking
to reduce his sentence under 18 U.S.C. § 3583(c)(2) to the bottom of the range–110
months. On July 20, 2015, the district court granted his motion and reduced his sentence
of imprisonment to 110 months.
Thereafter, on August 10, 2015, Davis moved the district court to reconsider its
revised sentencing decision and to impose a sentence below the reduced sentencing
range. The court denied the motion to reconsider on April 1, 2016, noting that U.S.S.G.
§ 1B1.10(b)(2)(A) prohibited a further sentence reduction. This decision forms the basis
of this appeal.
Before us, Davis now submits several arguments, all of which fail. First, he contends
that, because his initial sentence was below the sentencing range then in effect, his
subsequent reduced sentence should also have been below the lowered Guideline range.
We review a district court’s determination of whether a sentence is eligible for
reduction under 18 U.S.C. § 3582(c)(2) de novo; and we review the district court’s denial
of a § 3582(c)(2) motion for an abuse of discretion. United States v. Irons, 712 F.3d 1185,
1189 (7th Cir. 2013), overruled on other grounds by United States v. Taylor, 778 F.3d 667 (7th
Cir. 2015).
No. 16‐1879 Page 3
Section 3582(c)(2) permits a sentence reduction if the defendant was “sentenced to a
term of imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission ….” Amendment 782 lowered Davis’s offense level two
points, which in turn reduced Davis’s sentencing range to 110 to 137 months.
The district court committed no error by granting Davis’s motion to reduce his initial
sentence to the bottom of the new Guideline range. But the district court had no
authority to reduce Davis’s sentence any further. Unequivocally, the Sentencing
Guidelines and our case law prohibit a court from reducing a term of imprisonment
under § 3582(c)(2) “to a term that is less than the minimum of the amended guideline
range.” U.S.S.G. § 1B1.10(b)(2)(A).1 We have consistently recognized that district courts
have no authority to dip below the sentencing range when imposing a new sentence
under § 3582(c)(2). United States v. Garcia‐Fragoso, 626 F. Appʹx 646, 647 (7th Cir. 2015);
United States v. Anderson, 488 F. Appʹx 129, 131 (7th Cir. 2012); United States v.
Cunningham, 554 F.3d 703, 709 (7th Cir. 2009).
Davis next argues that § 1B1.10(b)(2)(A) “alters the formula used to arrive at the
applicable reduced guidelines range,” thereby violating the Ex Post Facto Clause of the
Constitution. (Appellant’s Br. at 14–15.) We have rejected this argument before. “[T]he
central focus of the ex post facto clause is ‘not an individual’s right to less punishment, but
the lack of fair notice and governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was consummated.’” United
States v. Diggs, 768 F.3d 643, 645 (7th Cir. 2014) (quoting Weaver v. Graham, 450 U.S. 24, 30
(1981)). Section 1B1.10(b)(2)(A), however, doesn’t increase punishment at all; instead, it
reduces punishment. See United States v. Salinas‐Ospina, 622 F. Appʹx 577, 578 (7th Cir.
2015) (“Amendment 782 and § 3582(c)(2) make drug sentences … more lenient.”).
Because Ҥ 1B1.10 presents neither a danger of increased punishment nor lack of fair
notice,” we hold that it does not violate the Ex Post Facto Clause. Id.
Finally, Davis argues that the district court thought that he “was subject to a ten‐year
mandatory minimum sentence” when he “was actually exposed to a five‐year
mandatory sentence in this case.” (Appellant’s Br. at 6.) He further contends that the
district court should have imposed a sentence using a one‐to‐one crack‐to‐powder ratio.
These arguments fail because Davis can use § 3582(c)(2) only to reduce his sentence
under Amendment 782, not to relitigate other sentencing issues. The Sentencing
Guidelines provide that, when using § 3582(c)(2) to reduce a sentence, courts “shall
substitute only the amendments listed in subsection (d) for the corresponding guideline
1 The only exception is when the defendant provides “substantial assistance to authorities,” which is
inapplicable here. See U.S.S.G. § 1B1.10(b)(2)(B).
No. 16‐1879 Page 4
provisions that were applied when the defendant was sentenced and shall leave all other
guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1).2 In Dillion v. United
States, the Supreme Court relied on this provision to hold that the district court properly
declined to address the defendant’s challenge to his criminal‐history category under
§ 3582(c)(2). 560 U.S. 817, 831 (2010). Because the district court here could consider only
Amendment 782 when reducing Davis’s sentence, we decline to address Davis’s
additional challenges to his sentence.
For these reasons, we AFFIRM the decision of the district court denying
reconsideration of Davis’s reduced 110–month sentence.
2 Subsection (d) includes Amendment 782.