                              In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 08-2901 & 08-2931

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

D EREK C UNNINGHAM AND
N ORMAN T HOMAS,
                                              Defendant-Appellants.


            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 04-CR-8889—Milton I. Shadur, Judge.


   A RGUED JANUARY 21, 2009—D ECIDED F EBRUARY 4, 2009




 Before P OSNER, F LAUM, and W OOD , Circuit Judges.
  F LAUM, Circuit Judge. This case presents the con-
solidated appeals of Derek Cunningham and Norman
Thomas. Their appeals arise from the same prosecution
and raise the same purely legal issue: whether a district
court, in reducing a defendant’s sentence pursuant to
18 U.S.C. § 3582(c)(2), has authority under United States
v. Booker, 543 U.S. 220 (2005) to reduce a defendant’s
sentence beyond the retroactive Guidelines amendment
2                                   Nos. 08-2901 & 08-2931

range. For the reasons explained below, we hold that a
district court does not have authority to do so and there-
fore affirm the judgment of the district court.


                      I. Background
  Because this appeal presents a purely legal question, the
facts of defendants’ convictions need not be explored
at length. Suffice to say, in the original prosecution,
co-defendants Thomas and Cunningham both pled guilty
to conspiring to distribute crack cocaine in violation of
21 U.S.C. § 846. On January 31, 2006, the district court
sentenced Thomas to 108 months in prison and
Cunningham to 87 months in prison. Both sentences were
at the low end of the advisory Sentencing Guidelines
range applicable to the respective defendants.
  In June 2008, the defendants filed section 3582(c)(2)
motions to reduce their sentences based on the retroactive
amendments to the crack cocaine Guidelines. Based on
the change in the crack quantities and corresponding
offense levels, each of the defendants’ base offense
levels were reduced by two levels. The defendants thus
requested that their sentences be reduced two levels in
light of the amendment. However, they also asserted
that the district court had the authority to consider grant-
ing them further sentence reductions, resulting in terms
of imprisonment below their respective amended Guide-
line ranges. With regard to this second point, defendants
argued that the district court had authority to reduce
their sentences below the amended Guideline ranges
because Booker made the Sentencing Guidelines advisory.
Nos. 08-2901 & 08-2931                                      3

  On July 17, 2008, the district court reduced the defen-
dants’ sentences but declined to decrease their sentences
below the two level reduction authorized by the retro-
active amendment. The district court held that Booker
was not implicated because “Booker concerns constitu-
tional limitations on increasing a sentence beyond what is
considered the prescribed maximum without a jury
finding, not, as in this case, to [sic] decreasing a sentence.
Section 3582(c)(2) concerns only sentence reductions
and thus does not implicate Booker or the constitutional
limitations upon which that decision was premised.”
  Defendants have appealed.


                      II. Discussion
  We review the district court’s determination of questions
of law de novo. United States v. Ryerson, 545 F.3d 483, 487
(7th Cir. 2008).
  Title 18 U.S.C. § 3582(c)(2) provides that
    [I]n the case of a defendant who has been sentenced to
    a term of imprisonment based on a sentencing range
    that has subsequently been lowered by the Sentencing
    Commission pursuant to 28 U.S.C. 944(o) . . . the
    court may reduce the term of imprisonment, after
    considering the factors set forth in § 3553(a) to the
    extent they are applicable, if such a reduction is con-
    sistent with applicable policy statements issued by
    the Sentencing Commission.
  The policy statements relevant to this case are found
in Sentencing Guidelines sections 1B1.10(a)(3) and
4                                    Nos. 08-2901 & 08-2931

1B1.10(b)(2)(A). Section 1B1.10(a)(3) states that “pro-
ceedings under 18 U.S.C. § 3582(c)(2) and this policy
statement do not constitute a full resentencing of the
defendant.” Section 1B1.10(b)(2)(A) provides that “the
court shall not reduce the defendant’s term of imprison-
ment under 18 U.S.C. § 3582(c)(2) and this policy state-
ment to a term that is less than the minimum of the
amended guideline range determined under subdivi-
sion (1) of this subsection.”1
   The basic question in this case is whether these policy
statements regarding section 3582(c)(2) resentencings—
first, that section 3582(c)(2) reductions do not constitute
full resentencings, and second, that a court shall nor
reduce a defendant’s imprisonment to less than the
minimum of the amended guideline range—conflict with
Booker’s general rule that the Sentencing Guidelines are
advisory. That is, whether or not district courts have
the authority, in making section 3582(c)(2) sentence
modifications, to treat the amended Guideline range as
advisory despite the Commission’s policy statements to
the contrary.
  Defendants advance four arguments to support their
contention that a district court can reduce a defendant’s
sentence beyond the retroactive Guidelines amendment
range. First, they argue that Booker expressly rejected



1
  Section 1B1.10(b)(2)(B) provides an exception for defendants
who were originally sentenced to below-Guidelines terms
of imprisonment. For such defendants, “a reduction
comparably less than the amended guideline range . . . may be
appropriate.”
Nos. 08-2901 & 08-2931                                       5

the notion that the Guidelines are advisory in some
contexts but mandatory in others. In other words, they
disagree that the Guidelines could be advisory during
a defendant’s initial sentencing but mandatory in sec-
tion 3582(c)(2) proceedings. Second, and to some degree
in the alternative, they argue that the Commission’s
policy statements themselves are advisory and thus are
not truly inconsistent with a below-guidelines sentence.
Third, they claim that if the Commission’s policy state-
ments were given full effect, they would strip courts
of their traditional sentencing discretion by constraining
their consideration of the section 3553(a) factors to the ex-
tent they are applicable—consideration that is mandated
under the terms of section 3582(c)(2). Finally, they argue
that since the Supreme Court has held that district courts
have discretion to depart from the Guidelines even
based on disagreements with the Guideline’s policy
statements, see, e.g., Spears v. United States, __ U.S. __, __
S.Ct. __, 2009 WL 129044 *2 (Jan. 21, 2009), the enactment
of the Guideline amendment and its policy statements
cannot strip the sentencing courts of their discretion by
mandating the strict application of a two level departure.
  The Ninth Circuit adopted many of the defendants’
views in United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007).
In Hicks, the Ninth Circuit concluded that limiting the
extent of a section 3582(c)(2) reduction to that prescribed
by the Sentencing Commission amounts to a mandatory
application of the Sentencing Guidelines that is prohibited
by Booker. While the court conceded that Booker itself
does not create the authority for reopening sentencing
under section 3582(c)(2), the court reasoned that once
6                                    Nos. 08-2901 & 08-2931

such proceedings were initiated, the district court has
discretion to impose a non-Guidelines sentence. Id. at
1171 (“Because a ‘mandatory system is no longer an
open choice,’ district courts are necessarily endowed
with the discretion to depart from the Guidelines when
issuing new sentences under § 3582(c)(2).”) (quoting Booker,
543 U.S. at 263). The Ninth Circuit also rejected the gov-
ernment’s argument that because a § 3582(c)(2) pro-
ceeding is not a “full resentencing,” but merely a modifica-
tion of the defendant’s sentence, Booker was inapplicable.
See id. at 1167 (“The dichotomy drawn by the government,
where full re-sentencings are performed under an
advisory system while ‘reduction proceeding’ or ‘modifica-
tions’ rely on a mandatory Guideline system, is false. . . .
Mandatory Guidelines no longer exist, in this context or
in any other.”).
   The government urges us to decline to follow Hicks.
They present three main arguments in support of affirming
the district court. First, they note that 28 U.S.C. § 944(u)
gives the Sentencing Commission the exclusive power
to decide under “what circumstances and by what
amounts the sentences of prisoners . . . may be reduced.”
See 28 U.S.C. § 944(u); see also Braxton v. United States, 500
U.S. 344, 348 (1991) (emphasis omitted) (Congress has
given the Sentencing Commission “the unusual and
explicit power to decide whether and to what extent
its amendments . . . will be given retroactive effect.”)
(emphasis omitted) (citing 28 U.S.C. § 944(u)). Thus, they
reason, the Commission’s policy statements that imple-
ment the Commission’s authorization of retroactive
sentence reductions are binding because they are an
Nos. 08-2901 & 08-2931                                       7

exercise of that statutory authority. Second, they focus
on the Commission’s policy statement in U.S.S.G.
§ 1B1.10(a)(3) which states that under section 3582(c)(2),
defendants do not receive “a full resentencing.” They cite
several pre-Booker cases holding, as the Eleventh Cir-
cuit did, for example, that section 3582(c)(2) “do[es] not
contemplate a full de novo resentencing” and “all original
sentencing determinations remain unchanged with the
sole exception of the guideline range that has been
amended since the original sentencing.” United States v.
Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis in
original) (internal quotation and citation omitted). Finally,
the government argues that Booker does not apply to
section 3582(c)(2) proceedings because Booker does not
apply to sentence reductions.
  Several recent circuit court decisions support the gov-
ernment’s position. See United States v. Rhodes, 549 F.3d
833 (10th Cir. 2008); United States v. Dunphy, ___ F.3d ___,
2009 WL 19139 (4th Cir. Jan. 5, 2009); United States v.
Starks, ___ F.3d ___, 2009 WL 66115 (8th Cir. Jan. 13, 2009).
A number of district courts from around the country
have also come to this conclusion. See United States v.
Speights, 561 F. Supp. 2d 1277, 1281 (S.D. Ala. 2008) (citing
eleven other district court decisions from around the
country that have held that Booker has no impact on
section 3582(c)(2) reductions).
  In our analysis, the best place to start is Booker itself. In
Booker’s substantive opinion, the Supreme Court held
that the federal sentencing system as it then existed,
under which the sentencing court rather than the jury
8                                   Nos. 08-2901 & 08-2931

found facts that established the mandatory guideline
range, violated the Sixth Amendment as construed in
Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v.
Washington, 542 U.S. 296 (2004). The constitutional
problem that Booker addressed was that “any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Booker, 543 U.S. at
231 (quoting Apprendi, 530 U.S. at 490). The Court found
that a sentencing system in which such judicial fact-
finding was mandatory violated the Sixth Amendment.
  However, as the district court recognized, in section
3582(c)(2) proceedings, a district court can only decrease a
defendant’s sentence. Thus, the constitutional defect
addressed by Booker is simply not implicated. Moreover,
a section 3582(c)(2) modification is discretionary, even
for a defendant whose Guideline range has been retro-
actively lowered. See 18 U.S.C. § 3582(c)(2) (identifying
circumstances in which “the court may reduce the term
of imprisonment”) (emphasis added). Thus, to frame a
section 3582(c)(2) reduction as a mandatory undertaking
that triggers the Sixth Amendment or Booker is incorrect.
  It is admittedly a bit harder to reconcile the language
of Booker’s remedial opinion, however. In its remedial
portion, Booker eliminated the constitutional defect identi-
fied above by severing and excising the provisions of the
Guidelines that made them mandatory, along with any
statutory provisions that depended upon the Guide-
lines’ mandatory nature. Booker, 543 U.S. at 245-46. The
remedial majority determined that this was what
Nos. 08-2901 & 08-2931                                     9

Congress would have intended in light of the court’s
constitutional holding. Id. at 246. The Court went on to
state that it did “not see how it was possible” to leave the
Guidelines as binding in some cases but not in others. Id.
at 266. The Court explicitly rejected the government’s
proposal, which would have “impose[d] mandatory
Guidelines-type limits upon a judge’s ability to reduce
sentences, but it would not impose those limits upon a
judge’s ability to increase sentences.” Id. As the Court
stated, “[w]e do not believe that such ‘one way lever[s]’ are
compatible with Congress’ intent.”
   Despite this broad language, we do not believe that
the Booker remedy renders the limits set by the Sen-
tencing Commission for section 3582(c)(2) proceedings
advisory.2 First, unlike a full sentencing or resentencing,
Congress clearly intended section 3582(c)(2) proceedings
to be a one way lever. Section 3582(c)(2) allows the
district court to leave a sentence alone or reduce it, but
it does not permit the district court to increase a sentence.
Second, and more generally, while Booker’s remedial
opinion stated that “we believe that Congress would not
have authorized a mandatory system in some cases and a
nonmandatory system in others” due to the possible
“administrative complexities” of such a system, it seems
to us that allowing (or requiring) district courts to essen-



2
  As an initial matter, it bears noting that because section
3582(c)(2) did not cross-reference any provisions excised by
Booker, and because Booker did not directly address section
3582(c)(2) proceedings, section 3582(c)(2) remained intact.
10                                      Nos. 08-2901 & 08-2931

tially conduct a full resentencing upon a section 3582(c)(2)
motion would create more administrative complexity, not
less. See Dunphy, 2009 WL 19139 at *5. Finally, Booker’s
remedial opinion focused on Congressional intent. The
text of section 3582(c)(2) makes clear that Congress in-
tended section 3582(c)(2) modifications to comport with
the Commission’s policy statements, an impossibility if
we were to adopt the defendants’ position that Booker
rendered the Guidelines wholly advisory in the context
of sentence modifications (as distinguished from full
sentencing proceedings).
   This last point bears elaboration, as it is the most impor-
tant basis for our decision today. Original sentencing
proceedings and sentence modification proceedings are
legally distinct from one another. Original proceedings
are governed by 18 U.S.C. § 3553 (a statute that was
partially excised in Booker), while sentence modification
proceedings are governed by 18 U.S.C. § 3582(c)(2).3
Contrary to the defendants’ contention, there is no “inher-
ent authority” for a district court to modify a sentence as
it pleases; indeed a district court’s discretion to modify
a sentence is an exception to the statute’s general rule
that “the court may not modify a term of imprisonment
once it has been imposed.” See 18 U.S.C. § 3582(c). When
Congress granted district courts discretion to modify
sentences in section 3582(c)(2), it explicitly incorporated



3
  This is a point we (and other courts) feel the Hicks court
failed to appreciate. See Rhodes, 549 F.3d at 840-41; Starks, 2009
WL 66115 at *3.
Nos. 08-2901 & 08-2931                                   11

the Sentencing Commission’s policy statements limiting
reductions. See United States v. Walsh, 26 F.3d 75, 77 (8th
Cir. 1994) (“Congress has made the policy statements
set forth in Section 1B1.10 the applicable law for deter-
mining whether a district court has the authority to
reduce a sentence in this situation.”). Thus, the Com-
mission’s policy statements should for all intents and
purposes be viewed as part of the statute. The policy
statements make clear that section 3582(c)(2) proceedings
are not full resentencings and may not result in a sentence
lower than the amended guideline range (unless the
defendant’s original sentence was lower than the guide-
line range). See U.S.S.G. §§ 1B1.10(a)(3), 1B1.10(b)(2)(A)
This limitation of the district court’s power is not con-
stitutionally suspect. Having chosen to create a modifica-
tion mechanism, Booker does not require Congress to
grant the district courts unfettered discretion in
applying it. Indeed, mandatory minimum sentences—
which cabin the district courts’ discretion with regard to
section 3553(a) factors—have been upheld as constitu-
tional. See Harris v. United States, 536 U.S. 545, 565-68
(2002); United States v. Franklin, 547 F.3d 726, 735 (7th
Cir. 2008) (rejecting defendant’s argument that the
district court had authority to depart from the mandatory
minimum and consider the factors set forth in 18 U.S.C.
§ 3553 to impose a lesser sentence) (citing Chapman v.
United States, 500 U.S. 453 (1991)).
  Section 3582(c)(2)’s direction that courts “shall consider
the factors in Section 3553(a) to the extent they are ap-
plicable” does not undermine our conclusion. It is true
that one of the factors in section 3553(a) is the Guidelines
12                                  Nos. 08-2901 & 08-2931

range, which Booker made advisory. However, section
3582(c)(2) states that a district court considers the
section 3553(a) factors in making a reduction “consistent
with the applicable policy statements issued by the Sen-
tencing Commission.” There need not be a conflict: the
statute can be viewed as requiring district courts to
consider the section 3553(a) factors in deciding whether
and to what extent to grant a sentence reduction, but only
within the limits of the applicable policy statements. See
Dunphy, 2009 WL 19139 at *7. (In this case, the limit is the
bottom of the amended Guideline range, as stated in
U.S.S.G. § 1B1.10.)
  In concluding that district courts do not have authority
to grant sentence reductions pursuant to section 3582(c)(2)
below the amended Guideline range, we are mindful
of two final points. As the government points out, Booker
has not been made a basis for post-conviction collateral
review under 28 U.S.C. § 2255. It would thus be incongru-
ous if courts interpreted section 3582(c)(2), which pro-
vides for more limited relief than section 2255, as trig-
gering a full Booker resentencing. On a related note,
Booker does not apply to the scores of defendants whose
sentences were final when Booker was handed down. It
would be unfair to allow a full Booker resentencing to
only a subset of defendants whose sentences were
lowered by a retroactive amendment.


                     III. Conclusion
  We side with the majority of courts and hold that district
courts, in reducing a defendant’s sentence pursuant to
Nos. 08-2901 & 08-2931                              13

18 U.S.C. § 3582(c)(2), do not have authority to reduce
the defendant’s sentence beyond the retroactive Guide-
lines amendment range. We thus AFFIRM the judgment of
the district court.




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