Opinion
NO. 92-300042.
February 23, 2009
OPINION
Sheppard filed a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).
The motion [d/e 109] is denied.
Sheppard pled guilty to distributing and conspiring to distribute cocaine base. This Court sentenced him as a career offender, and, pursuant to 21 U.S.C. § 841(a)(1)(C), increased his maximum sentence to 30 years. Ultimately, Sheppard was sentenced to 294 months. The appellate court affirmed. United States v. Sheppard, 33 F.3d 56 (7th Cir. Aug. 9, 1994) (table).
Sheppard now seeks a sentence reduction pursuant to § 3582(c)(2). That provision permits courts to reduce a sentence where the relevant sentencing range "has subsequently been lowered by the Sentencing Commission. . . ." § 3582(c)(2).
Sheppard appears to argue that he is entitled to a reduction based on Kimbrough v. United States, 128 S. Ct. 558 (2007). That case, however, is not a basis for relief under § 3582(c)(2), as it did not involve an action of the Sentencing Commission lowering the relevant sentencing range. United States v. Sharkey, 543 F.3d 1236 (10th Cir. 2008); Hayes v. United States, 141 Fed. Appx. 463, 464 (7th Cir. June 29, 2005) (noting, in response to a Booker argument, that § 3582(c)(2) "authorizes an inmate to file a motion to reduce a sentence based on a subsequent amendment to the guidelines, not based on new case law").
In any event, Kimbrough would likely fail to help Sheppard. See United States v. Harris, 536 F.3d 798, 813 (7th Cir. 2008) ("a sentence entered under the career offender guideline, § 4B1.1, raises no Kimbrough problem."); see also United States v. Cunningham, ___ F.3d ___, 2009 WL 249886 (7th Cir. Feb. 4, 2009) (explaining that even where a § 3582(c)(2) reduction is granted, district courts still lack authority to sentence below the retroactive Guidelines amendment range despite Booker and its progeny).
Rather, the only possible basis for a reduction would come from Amendment 706, which generally lowered the base offense level for many defendants with cocaine-base convictions. Sheppard, however, was sentenced as a career-offender; the drug quantity tables of § 2D1.1 were not used. Thus, because his guideline range would remain the same regardless of Amendment 706, Sheppard is entitled to no relief under § 3582(c)(2). See United States v. Forman, 553 F.3d 585, 589-91 (7th Cir. 2009).
Ergo, Sheppard's motion to reduce [d/e 109] is DENIED.
IT IS SO ORDERED.