NONPRECEDENTIAL DISPOSITION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 March 24, 2010*
Decided July 14, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐3164
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:01 CR 185
DESMOND FIELDS,
Defendant‐Appellant. James T. Moody,
Judge.
O R D E R
Desmond Fields appeals from a district court order reducing his prison sentence
under 18 U.S.C. § 3582(c)(2). Fields wanted a greater reduction, but the court concluded
that it was not authorized to go any lower. We affirm.
Fields pleaded guilty in 2002 to four counts of using a phone to facilitate distributing
powder and crack cocaine, see 21 U.S.C. § 843(b); 18 U.S.C. § 2. With a total offense level of
37 and a criminal history category of I, his advisory guideline range on those charges was
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(B).
No. 08‐3164 Page 2
210 to 262 months. The district court imposed four consecutive sentences of 48 months—the
statutory maximum for the offense, 21 U.S.C. § 843(d)(1)—for a total term of 192 months’
imprisonment. We dismissed his direct appeal. United States v. Fields, 87 F. App’x 590 (7th
Cir. 2004) (nonprecedential disposition).
In 2008, Fields moved under § 3582(c)(2) to reduce his sentence based on
Amendments 706 and 711 to the Sentencing Guidelines, which retroactively decreased by
two levels the base offense level for most crack cocaine offenses. Fields further argued that
he was entitled to a new sentencing proceeding under the Guidelines in accordance with
United States v. Booker, 543 U.S. 220 (2005). He asserted that after Booker, the amended
guideline range is advisory in a sentencing modification under § 3582(c)(2) and does not
restrain a court from imposing a further reduction in light of the factors listed in § 3553(a).
The court agreed that Fields was entitled to a two‐level decrease in base offense level, but
declined to grant any reduction greater than that. Noting that § 3582(c)(2) does not provide
a basis for reopening sentences for further consideration, the court reduced Fields’s sentence
to 168 months—the bottom of the newly calculated guidelines range—and denied his
request for a resentencing hearing.
Fields filed a pro se notice of appeal more than 10 days after the judgment was
entered, see FED. R. APP. P. 4(b)(1)(A)(i) (2005), and the parties dispute whether his filing can
be considered timely under the “mailbox rule,” see FED. R. APP. P. 4(c)(1). But the Rule 4(b)
time limit for filing notice of appeal in criminal case is not jurisdictional, see United States v.
Neff, — F.3d —, 2010 WL 816629, *3 (7th Cir. 2010), and as Fields cannot prevail in his
appeal in any event, we resolve the case on the merits.
Fields argues that the district court erred in not recognizing that Booker applies to
§ 3582(c)(2) proceedings, in not applying the § 3553(a) factors when reducing sentence, and
in not otherwise reducing his sentence below the amended guideline range. But Fields
arguments are foreclosed by United States v. Cunningham, 554 F.3d 703, 707‐08 (7th Cir.
2009), in which we concluded that Booker does not require a district court to treat the
guidelines as advisory in the limited context of a resentencing under § 3582(c)(2), a statute
legally distinct from § 3553(a), which governs original sentencing proceedings. “The policy
statements [in U.S.S.G. §§ 1B1.10(a)(3), 1B1.10(b)(2)(A)] make clear,” we went on to explain,
that § 3582(c)(2) proceedings are not full resentencings and may not result in a sentence
lower than the amended guideline range. . . . ” Id. at 708. Fields cites United States v. Hicks,
472 F.3d 1167, 1171‐72 (9th Cir. 2007), the only circuit opinion authorizing district courts to
reduce a sentence below the amended guideline in a resentencing under § 3582(c), but we
explicitly disagreed with that approach in Cunningham. Cunningham, 554 F.3d at 708 n.3.
AFFIRMED.