United States v. Keenan Jackson , 310 F. App'x 900 ( 2009 )

NONPRECEDENTIAL DISPOSITION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 December 22, 2008∗
Decided February 17, 2009
Before
FRANK H. EASTERBROOK , Chief Judge
KENNETH F. RIPPLE , Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08-3145
Appeal from the United
UNITED STATES OF AMERICA, States District Court for the
Plaintiff-Appellee, Central District of Illinois.
v. No. 3:02-cr-30028-JES
Jeanne E. Scott, Judge.
KEENAN L. JACKSON,
Defendant-Appellant.
Order
Appellant, whose conviction was affirmed in United States v. Jackson, 377 F.3d 715(7th Cir. 2004), asked the district court to reduce his sentence under 18 U.S.C. §3582(c),
which authorizes judges to reduce sentences when the Guidelines on which they rest
have been changed by amendments to the Sentencing Guidelines that the Sentencing
∗ 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. 08-3145 Page 2
Commission has made retroactive. Jackson invoked Amendment 706, which
retroactively reduces the sentencing ranges for some crack cocaine offenses.
The district court denied Jackson’s motion for a lower sentencing, observing that
he had been sentenced under the career-offender Guideline USSG §4B1.1, rather than
under USSG §2D1.1, the only Guideline affected by Amendment 706. Jackson concedes
that the district judge imposed the sentence under §4B1.1, which is unaffected by
Amendment 706. Section 3582(c) permits resentencing only when the Guideline on
which the sentence rested has been amended, so Amendment 706 does not affect
career-offender sentences. See, e.g., United States v. Sharkey, 543 F.3d 1236 (10th Cir.
2008). See also United States v. Poole, 550 F.3d 676 (7th Cir. 2008) (§3582(c) permits
reduction only when a sentence was “based on” a Guideline later reduced; a sentence
based on other statutes or rules must stand).
Jackson maintains that the district judge should not have used the career-
offender Guideline when he was sentenced in 2003, and that the controlling Guideline
should have been §2D1.1. He contends that some of the prior convictions that led the
district judge to classify him as a career offender are invalid or inapplicable. But that
subject, to the extent that it was ever open in this federal prosecution--see Custis v.
United States, 511 U.S. 485 (1994) (a recidivist enhancement does not authorize an
indirect collateral attack on a prior conviction, except to argue that the defendant asked
for and did not receive the benefit of counsel)--could have been raised on Jackson’s
original appeal. Section 3582(c) does not permit a defendant to raise an argument
available at sentencing but waived or forfeited then. Congress has authorized the
application of retroactive Guidelines; it has not authorized district courts (or courts of
appeals) to revisit arguments that were available but bypassed long ago.
AFFIRMED