USA v. Demilious Kelly

Filing 1

Opinion

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 January 8, 2009 Decided January 13, 2009

Before
FRANK H. EASTERBROOK , Chief Judge WILLIAM J. BAUER, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge

No. 08-3099
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEMILIOUS E. KELLY, Defendant-Appellant. Order

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:01-cr-00316-2 Suzanne B. Conlon, Judge.

Demilious Kelly asked the district judge to reduce his sentence under the current version of the crack-cocaine guidelines. That step is authorized by 18 U.S.C. §3582(c)(2) when the Sentencing Commission makes a revision to the guidelines retroactive. Amendment 706 supplies the necessary declaration of retroactivity. The district court calculated a range of 151 to 188 months under the revised guidelines and reduced Kelly's sentence from 211 to 188 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); Cir. R. 34(f).

No. 08-3099

Page 2

Kelly contends on appeal that the district court should have conducted a full resentencing, with a new presentence report and an adversarial proceeding at which Kelly would have the assistance of appointed counsel. But we held in United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999), that proceedings under §3582(c)(2) are summary, and that a full resentencing is neither required nor authorized. See also USSG §1B1.10(a)(3). The district court was entitled to proceed, as it did, on the paper record. And although Kelly is disappointed that he did not receive a greater reduction, both the statute and the guidelines make a reduction discretionary; Kelly was not legally entitled to any reduction, and the reduction of 23 months that he received cannot be deemed legally inadequate. (The district court's statement of reasons does not consider any impermissible ground.) Nor was the district court compelled to depart from the 100-to1 ratio between crack and powder cocaine. After Kimbrough v. United States, 128 S. Ct. 558 (2007), a district court is entitled to disagree with that ratio in any original sentencing proceeding. It is an open question in this circuit whether a district judge may do this in a resentencing under §3582(c)(2), given the limited scope of authority conveyed by that statute. But neither in an original sentencing, nor in any resentencing, is a district judge compelled to use any ratio other than the 100-to-1 ratio built into the Sentencing Guidelines. Affirmed