United States v. Dustin Decker , 710 F. App'x 263 ( 2018 )

NONPRECEDENTIAL DISPOSITION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 16, 2018 *
Decided January 31, 2018
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17-2840
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:07-cr-00012-WTL-DKL-14
DUSTIN DECKER,
Defendant-Appellant. William T. Lawrence,
Judge.
ORDER
On December 7, 2007, Dustin Decker was sentenced to a term of 235 months’
imprisonment after pleading guilty to conspiring to distribute methamphetamine and
possessing methamphetamine with the intent to distribute. We affirmed that sentence
in 2009 after he appealed. Five years later, the U.S. Sentencing Commission
implemented Amendment 782. The Amendment reduced the applicable Guidelines
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2).
No. 17-2840 Page 2
range for drug trafficking offenses like Decker’s and applied retroactively. Thereafter,
the United States and Decker submitted a stipulation to the district court to reduce
Decker’s sentence pursuant to that amendment and 18 U.S.C. § 3582(c). The district
court resentenced Decker to 188 months’ imprisonment, a 47-month reduction.
Decker later sought a second retroactive reduction under § 3582(c)(2) based on
Amendment 794. The district court denied the motion, reasoning that Amendment 794
is not retroactive under § 3582(c)(2). Decker appeals.
Section 3582(c)(2) provides that a court may modify a term of imprisonment even
after it has been imposed if (1) the Sentencing Commission subsequently lowers the
applicable sentencing range and (2) the reduction is consistent with any applicable
policy statement from the Commission. 18 U.S.C. § 3582(c)(2). The applicable policy
statement is U.S.S.G. § 1B1.10. A reduction in an already-imposed sentence is
inconsistent with that statement if the amendment that grants the reduction is not listed
in § 1B1.10(d). See § 1B1.10(a)(2). In other words, only those amendments listed in
subsection (d) apply retroactively under § 3582(c)(2).
Amendment 794 is not listed in § 1B1.10(d). This omission dooms Decker’s
§ 3582(c)(2) motion. We are not persuaded by his argument that we should nonetheless
apply Amendment 794 retroactively because it is a clarifying amendment resolving a
circuit split. “When a defendant collaterally attacks his sentence by a § 3582(c)(2)
motion,” rather than attacking it through a direct appeal or a § 2255 petition, the fact
that the amendment is clarifying is irrelevant. See, e.g., United States v. Drath, 89 F.3d
216, 217–18 (5th Cir. 1996). Section 3582(c)(2) and its relevant policy statement require
that an amendment be listed in § 1B1.10(d) to be given retroactive effect under § 3582.
Because Amendment 794 is not listed, the judgment of the district court is AFFIRMED.