United States v. Omar Feliciano , 333 F. App'x 91 ( 2009 )


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  •                               NONPRECEDENTIAL DISPOSITION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 April 29, 2009∗
    Decided May 8, 2009
    Before
    FRANK H. EASTERBROOK, Chief Judge
    ILANA DIAMOND ROVNER, Circuit Judge
    DIANE P. WOOD, Circuit Judge
    No. 09-1008
    Appeal from the United
    UNITED STATES OF AMERICA,                                        States District Court for the
    Plaintiff-Appellee,                                        Northern District of Illinois,
    Eastern Division.
    v.
    No. 98 CR 923
    OMAR FELICIANO,                                                  Blanche M. Manning, Judge.
    Defendant-Appellant.
    Order
    Omar Feliciano is in prison following his conviction for conspiring to distribute
    cocaine. 
    21 U.S.C. §846
    . After the Sentencing Commission reduced the guideline
    applicable to crack-cocaine offenses, and made that change retroactive, see Amendment
    706, Feliciano asked the district court to reduce his sentence.
    ∗ 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. 09-1008                                                                  Page 2
    His range, recalculated under the amended guideline, is 292 to 365 months.
    (Feliciano is accountable for 670 grams of crack and 7.8 kilograms of powder cocaine
    and is in criminal history category III.) His original sentence was 360 months, but after a
    remand following United States v. Booker, 
    543 U.S. 220
     (2005), the sentence was reduced
    to 180 months. The district judge declined to reduce it further under Amendment 706,
    observing that 180 months is well below the bottom of the new range and concluding
    that no further reduction is appropriate.
    It is questionable whether any further reduction is permissible, given the
    principle that a retroactive change does not authorize a judge to give a sentence lower
    than the lower limit of the new range. See United States v. Cunningham, 
    554 F.3d 703
     (7th
    Cir. 2009). But whether or not a reduction is permissible, it is never mandatory.
    Amendment 706 permits, but does not require, the reduction in a sentence for crack
    cocaine. The district judge’s explanation of its decision—that Feliciano’s sentence is
    already well below the applicable range—is rational and consistent with statute.
    Feliciano’s argument that “Booker ... is a piece of judicial legislation that must be
    foreclosed by the separation of powers doctrine” (which, to Feliciano, means that the
    entire Sentencing Reform Act of 1984 is invalid) is frivolous, not only because a court of
    appeals must follow decisions of the Supreme Court, but also because, but for Booker,
    Feliciano’s sentence would be 360 months. All questions about timing to one side—
    Feliciano’s supposition that a sentence is forever open to challenge and reduction is
    incorrect—Feliciano was helped rather than injured by Booker.
    AFFIRMED
    

Document Info

Docket Number: 09-1008

Citation Numbers: 333 F. App'x 91

Judges: Per Curiam

Filed Date: 5/8/2009

Precedential Status: Non-Precedential

Modified Date: 1/12/2023