United States v. Albert Luckey , 290 F. App'x 933 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 August 14, 2008*
Decided August 25, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-1834
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff-Appellee, for the Central District of Illinois.
v. No. 05-CR-20009
ALBERT LUCKEY, Michael P. McCuskey,
Defendant-Appellant. Chief Judge.
ORDER
Albert Luckey sought to take advantage of Amendment 706 to the United States
Sentencing Guidelines Manual, which retroactively reduced the base-offense levels for
crack-cocaine offenses. See U.S.S.G. § 2D1.1(c). The district court denied his motion to
reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), and Mr. Luckey appeals.
*
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. 08-1834 Page 2
We affirm because Amendment 706 does not apply to Mr. Luckey’s sentence. He
pleaded guilty to possessing more than 50 grams of cocaine base and had a prior felony
drug conviction, which means that by statute his mandatory-minimum penalty was 240
months’ imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii). That was greater than the range
Mr. Luckey otherwise would have faced (188 to 235 months), and so the statutory
minimum became Mr. Luckey’s guideline sentence. See U.S.S.G. § 5G1.1(b). Section
3582(c)(2) provides that when the Sentencing Commission lowers a prisoner’s guidelines
range a court may reduce the sentence only “if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” The application notes
to U.S.S.G. § 1B1.10 provide that a reduction “is not consistent with this policy statement” if
it would not lower the applicable guideline range because of a “statutory provision (e.g., a
statutory mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10, comment.
(n.1(A)); see also United States v. Lawrence, Nos. 08-1856, 08-1857, 08-1858, 08-1862, 2008 WL
2854151, at *3 (7th Cir. July 25, 2008) (recognizing that court’s authority to reduce sentences
under § 3852(c) is limited by Commission’s policy statements); United States v. Jones, 523
F.3d 881, 882 (8th Cir. 2008). Furthermore, aside from two exceptions not applicable here,
district courts may not impose a sentence below a statutory mandatory minimum. See
Kimbrough v. United States, 128 S. Ct. 558, 574 (2008) (“[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. Harris, No. 07-2195, 2008 WL
3012362, at *12 (“While the sentencing guidelines may be only advisory for district judges,
congressional legislation is not.”); United States v. Simpson, 337 F.3d 905, 909 (7th Cir. 2003)
(“The only provisions allowing for departure from a statutory minimum are 18 U.S.C. §§
3553(e) and (f).”).
Mr. Luckey also argues in his reply brief that the information the government filed
that listed his previous felony drug conviction for purposes of applying the mandatory
minimum would have violated 21 U.S.C. § 851(a)(2) under the revised guidelines. He
misunderstands the statute, but even if there might otherwise have been a violation,
because he was charged in an indictment in the present case, there could be no § 851(a)(2)
violation. See United States v. Jackson, 189 F.3d 502, 512 (7th Cir. 1999).
AFFIRMED.