USA v. Eddie Gregory

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 October 16, 2009 Decided October 23, 2009

Before
FRANK H. EASTERBROOK , Chief Judge KENNETH F. RIPPLE , Circuit Judge TERENCE T. EVANS, Circuit Judge

No. 09-1514
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDDIE D. GREGORY, Defendant-Appellant. Order

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:93-CR-00148-15 Larry J. McKinney, Judge.

Eddie D. Gregory is serving a sentence of 480 months' imprisonment for crackcocaine offenses. After the Sentencing Commission reduced the Guideline ranges for such crimes, and made the reductions retroactive, Gregory filed a motion under 18 U.S.C. §3582(c)(2) asking for a lower sentence. The district court denied that motion; Gregory appeals. The appeal was received after the 10 days allowed, but the prisonmailbox rule makes it timely.

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. 09-1514

Page 2

Gregory's sentence is within the range of 360 months to life that was prescribed for his offense level of 42 and his criminal history category of VI. The retroactive change to the Guidelines reduced the offense level from 42 to 40. The range for level 40 likewise is 360 months to life. Section 3583(c)(2) allows the district judge to change a sentence only when the revised guideline lowers the sentencing range. The district court rightly concluded that this had not occurred for Gregory, making him ineligible. Gregory's brief does not disagree with this understanding. Instead he contends that he should receive a complete resentencing, at which he would argue that criminal history category VI overstates the seriousness of his record and that he should receive a lower sentence under United States v. Booker, 543 U.S. 220 (2005), and its successors. But §3582(c)(2) does not authorize a full resentencing. See United States v. Cunningham, 554 F.3d 703 (7th Cir. 2009). The original offense-level and criminal-history calculations must be taken as established; the question under the statute is whether a change in the Guidelines affects the resulting range. The change did not affect Gregory's range, so the statute does not authorize resentencing. AFFIRMED