United States v. Ingmar Gillon , 381 F. App'x 623 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2007
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Ingmar Eloy Gillon, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 15, 2010
Filed: June 18, 2010
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Before SMITH, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Ingmar Eloy Gillon was sentenced to 360 months in prison for being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and for
possessing with intent to distribute a mixture or substance containing cocaine base
while on pretrial release, in violation of 18 U.S.C. § 3147(1) and 21 U.S.C.
§ 841(a)(1). The sentence was allocated as follows: 120 months for the felon-in-
possession violation, a 320-month concurrent sentence for the drug violation, and a
40-month consecutive sentence for committing the offense while on pretrial release.
In 2009, the district court1 applied 18 U.S.C. § 3582(c)(2) and Guidelines Amendment
706 to recalculate Gillon’s sentence. The court subtracted two levels from Gillon’s
total offense level, reduced the Guidelines sentence for his drug violation from 320
months to 284 months (the bottom of the range applicable to the reduced offense
level), and left the balance of Gillon’s sentence unmodified, for a new total sentence
of 324 months. Gillon appeals, and having conducted de novo review, see United
States v. Tolliver, 570 F.3d 1062, 1065 (8th Cir. 2009), we affirm.
By sentencing Gillon at the bottom of the reduced Guidelines range, the court
gave him the maximum sentencing reduction allowed under Amendment 706 and
U.S.S.G. § 1B1.10(b)(1), (c) (in determining reduction under § 3582(c) and policy
statement, court shall determine amended Guidelines range that would have been
applicable if Amendment 706 had been in effect at time defendant was sentenced),
(b)(2)(A) (court shall not reduce term of imprisonment to less than minimum of
amended Guidelines range determined under (b)(1)). Gillon argues that United States
v. Booker, 543 U.S. 220 (2005), would permit a greater reduction. This argument is
foreclosed by our precedent, see United States v. Starks, 551 F.3d 839, 84-43 (8th
Cir.) (§ 1B1.10 was not rendered advisory by Booker, which does not apply to
§ 3582(c)(2) proceedings; § 1B1.10’s limitation on sentence-reduction authority is
constitutional and enforceable), cert. denied, 129 S. Ct. 2746 (2009), and we reject his
argument that Amendment 712 (which pre-existed Starks) somehow “overruled”
Starks.
Gillon also argues that his superseding indictment was defective, and he takes
issue with various Guidelines calculations that were made at the time of his original
sentencing, including the drug-quantity calculation and an obstruction-of-justice
enhancement, among other things. Section 3582(c)(2), however, does not provide any
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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basis to raise such sentencing issues. See United States v. Harris, 574 F.3d 971, 972-
73 (8th Cir. 2009) (proceedings under § 3582(c) and § 1B1.10 do not constitute full
resentencing and are not do-over of original sentencing). The same is true as to the
challenge to his indictment.
Finally, we reject Gillon’s remaining arguments that he has been prejudiced in
this matter by not having access to a law library, and that Chief Judge Reade should
have recused herself because of her refusal to agree with him that Booker applied and
to grant a greater reduction. See White v. Nat’l Football League, 585 F.3d 1129, 1138
(8th Cir. 2009) (denial of recusal motion reviewed for abuse of discretion).
Accordingly, we affirm the district court’s judgment.
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