United States v. William Edwards , 370 F. App'x 738 ( 2010 )

NONPRECEDENTIAL DISPOSITION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 14, 2010∗
Decided April 19, 2010
Before
FRANK H. EASTERBROOK , Chief Judge
RICHARD D. C UDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09-2935 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v. No. 95 CR 508-5
Harry D. Leinenweber, Judge.
WILLIAM EDWARDS,
Defendant-Appellant.
Order
William Edwards is serving a sentence of life imprisonment for his role in the
Gangster Disciples, a drug-distribution organization. We affirmed his conviction and
sentence in 2001. See 246 F.3d 1054 (7th Cir. 2001).
In 2008 Edwards asked the judge to reduce his sentence in light of the Sentencing
Commission’s decision to lower, with retroactive effect, the Guideline ranges for crack-
cocaine offenses. See 18 U.S.C. §3582(c)(2). The district court concluded, however, that
Edwards is ineligible. The statute authorizes a judge to reduce the sentence only if the
retroactive change in the Guidelines reduced the Commission’s recommended range.
∗ 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. 09-2935 Page 2
See generally United States v. Cunningham, 554 F.3d 703 (7th Cir. 2009); United States v.
Hall, 582 F.3d 816 (7th Cir. 2009). The district court found when sentencing Edwards that
his base offense is level 38, because his relevant conduct exceeded 150 kilograms of
powder cocaine and 1.5 kilograms of crack. After the amendments to the Guidelines, it
takes 4.5 kilograms of crack to support level 38; 1.5 kilograms leads to level 36. But the
district judge concluded that, even under the revised Guidelines, Edwards’s relevant
conduct still produces a level 38 sentence. First, the judge observed that 150 kilograms
of powder cocaine by itself leads to a level 38 classification. The amendments did not
change the treatment of powder cocaine. Second, the judge stated that Edwards is
responsible for much more than 4.5 kilograms of crack cocaine. The presentence report
concluded that Edwards’s organization distributed more than 1.5 kilograms of crack per
day for many years. The only reason the figure 1.5 kilograms had been used earlier is
that, until the recent amendments, 1.5 kilograms of crack put a drug offender in the
highest possible base offense classification. Finally, the judge added, he would not
reduce the sentence even if Edwards were eligible, given the severity of his criminal
conduct.
Edwards contends on this appeal that he is entitled to a new hearing, and a fresh
opportunity to present evidence, before the judge raises his relevant conduct from 1.5
to 4.5 kilograms of crack. It may well be that a district judge should hold a hearing
before making a new finding of fact, but Edwards overlooks the point that at his
original sentencing the judge approved the PSR’s calculations. All the judge did in
response to Edwards’s motion for a lower sentence was to emphasize this agreement,
not to make a new finding. The only reason why anyone mentioned the 1.5 kilogram
figure at the time of the original sentence was that greater amounts had no effect on the
base offense level. What is more, the district judge did not find Edwards culpable for
“only” 1.5 kilograms of crack; the judge found that his relevant conduct included at
least 150 kilograms of powder cocaine. This means that his base offense level is 38
without regard to the amount of crack for which he is responsible. The Sentencing
Commission’s decision to increase the quantity of crack needed to place a person in
level 38 thus had no effect on Edwards’s sentencing range, and because the retroactive
change did not affect his range he is ineligible under §3582(c)(2), just as the district court
concluded. See United States v. Lawrence, 535 F.3d 631, 637–38 (7th Cir. 2008).
To the extent that Edwards is contesting the calculation of his relevant conduct at his
original sentencing, that subject is outside the scope of §3582(c)(2). The statute does not
allow revival of an issue that could have been presented on the initial appeal. Eligibility
for a reduction depends on how the retroactive amendment applies to Guidelines
calculations already made.
Because Edwards is ineligible for any reduction, the issue before the the Supreme
Court in Dillon v. United States, No. 09-6338 (argued Mar. 30, 2010), does not affect this
appeal.
AFFIRMED