NONPRECEDENTIAL DISPOSITION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 October 19, 2012*
Decided January 8, 2013
Before
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐2987
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 2:06‐cr‐231
EXIE TATUM, JR., Rudolph T. Randa,
Defendant‐Appellant. Judge.
O R D E R
Exie Tatum, Jr. was convicted by a jury of possession with intent to distribute controlled
substances (Count I), possession of a firearm in furtherance of a drug‐trafficking crime (Count
II), and being a felon in possession of a firearm (Count III). Under the Sentencing Guidelines
in effect at his sentencing in 2007, the amount of crack cocaine and other drugs involved in
Count I triggered a base offense level of 30. U.S.S.G. § 2D1.1(c)(2) (2007). The district court
sentenced Tatum within the applicable guidelines range to a term of 211 months’
*
This successive appeal has been submitted to the original panel under Operating Procedure
6(b). After examining the briefs and the record, we have concluded that oral argument is
unnecessary. See FED. R. APP. P. 34(a).
No. 12‐2987 Page 2
imprisonment. We affirmed his conviction, but said that he was free to file a motion in the
district court under 18 U.S.C. § 3582(c)(2) for a sentence reduction under Amendment 706 to
the Sentencing Guidelines. United States v. Tatum, 548 F.3d 584, 588 (7th Cir. 2008).
In his current appeal, he alleges that he urged the Milwaukee Federal Defender Service
to file a § 3582(c)(2) motion on his behalf in 2008, but it did not do so until 2012—after he had
already filed a pro se motion himself. The motion filed by the Federal Defender Service argued
that Tatum’s offense level should be reduced to 28 as a result of Guidelines Amendment 750.
The district court accepted the applicability of the new offense level and reduced his sentence
to 190 months’ imprisonment. Three days later, Tatum filed a pro se “supplemental” motion
seeking a further reduction under § 3582(c)(2), and arguing that the district court erred in not
reducing his sentence under both Amendment 706 and Amendment 750. The district court
denied Tatum’s motion after concluding that its previous order “gave Tatum all the reduction
he was entitled to, including the request for a reduction under Amendment 706.” See 18 U.S.C.
§ 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B). The district court was correct.
Tatum appears to have misunderstood the applicability of the amendments here in
question. In 2007, the Sentencing Commission adopted Amendment 706, which reduced offense
levels in most crack cocaine cases by two levels. If Tatum had been resentenced in 2008, this
would have lowered Tatum’s original offense level from 30 to 28. In 2011, the Sentencing
Commission adopted Amendment 750, which arose from the Fair Sentencing Act of 2010 and
lowered the threshold drug quantities triggering mandatory minimum sentences for certain
drug offenses. But Tatum’s guideline range was calculated in 2012 with the benefit of both
amendments, and his base offense level calculation under Amendment 750 is still 28. Therefore,
the district court could not further reduce his sentence under § 3582(c)(2).
Tatum also argues that the Federal Defender Service rendered him ineffective assistance
of counsel by failing to request a sentencing reduction back in 2008, after Amendment 706 took
effect. To prevail on an ineffective assistance of counsel claim, Tatum must show that (1) his
trial counsel’s performance was objectively “deficient”; and (2) his counsel’s deficiency
“prejudiced” his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). While we recognize
that he had to wait four years before the Federal Defender Service filed the § 3582(c)(2) motion
on his behalf, without the requisite showing of prejudice, any ineffective assistance of counsel
claim must fail. There was no prejudice here. Even if the Federal Defender Service had brought
Tatum’s § 3582(c)(2) in motion in 2008, that would not have changed his applicable guidelines
range or release date. The judgment of the district court is therefore AFFIRMED.