USA v. Tim Bailey

Filing 2

Opinion

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 30, 2008* Decided November 4, 2008 Before WILLIAM J. BAUER, Circuit Judge JOHN L. COFFEY, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 08-2321 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TIM BAILEY, Defendant-Appellant. Appeal from the United States District Court for the Central District of Illinois. No. 02-CR-10144 Joe Billy McDade, Judge. ORDER After examining the briefs and record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P. 34(a)(2). * No. 08-2321 Page 2 Tim Bailey is serving concurrent 240-month prison terms for dealing crack cocaine. See 21 U.S.C. 846, 841(a)(1). Bailey moved under 18 U.S.C. 3582(c)(2) to reduce those terms on the ground that the United States Sentencing Commission has issued a retroactive amendment lowering the base offense level for some crack offenses. The district court denied his motion and Bailey appeals. The pertinent amendment, see U.S.S.G. App. C, Supp. 2007, amend. 706, pp. 227-31, does not help Bailey. Bailey's drug crimes involved at least 50 grams of crack, and he already had a felony drug conviction, so the mandatory-minimum penalty for his crimes was 240 months. See 21 U.S.C. 841(b)(1)(A)(iii), 851. Since Bailey received the statutory minimum, the district court lacked the authority to reduce his sentence further. See Kimbrough v. United States, 128 S. Ct. 558, 574 (2007) ("[A]s to crack cocaine sentences in particular, we note [that] . . . district courts are constrained by the mandatory minimums Congress prescribed in the 1986 Act."); United States v. Black, 523 F.3d 892, 892-93 (8th Cir. 2008); United States v. Green, 532 F.3d 538, 546 n.8 (6th Cir. 2008); United States v. Harris, 536 F.3d 798, 813 (7th Cir. 2008) ("While the sentencing guidelines may be only advisory for district judges, congressional legislation is not."); United States v. Neal, 46 F.3d 1405, 141 (7th Cir. 1995). AFFIRMED.

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