                         NONPRECEDENTIAL DISPOSITION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 March 14, 2012
                                  Decided March 21, 2012

                                            Before

                            WILLIAM J. BAUER, Circuit Judge

                            RICHARD A. POSNER, Circuit Judge

                            ILANA DIAMOND ROVNER, Circuit Judge



No. 11‐3786

UNITED STATES OF AMERICA,                            Appeal from the United States District
                  Plaintiff‐Appellee,                Court for the Northern District
                                                     of Indiana, Hammond Division.
       v.
                                                     No. 2:97‐cr‐00088‐JTM‐APR‐3
JACOBY WALKER,
                     Defendant‐Appellant.            James T. Moody,
                                                          Judge.

                                        O R D E R

   We summarily AFFIRM and adopt as the Order of this court the Order dated 
December 2, 2011, issued by Judge James T. Moody of the United States District Court for the
Northern District of Indiana, Hammond Division, attached hereto.
      case 2:97-cr-00088-JTM-APR document 750            filed 12/02/11 page 1 of 5



                          UNITED STATES DISTRICT COURT
                          NORTHERN DISTRICT OF INDIANA
                               HAMMOND DIVISION

UNITED STATES OF AMERICA                  )
                                          )
                     v.                   )      No. 2:97 CR 88
                                          )
JACOBY WALKER                             )

                                         ORDER

       Defendant Jacoby Walker filed a pro se motion seeking a reduction in his sentence

pursuant to 18 U.S.C. § 3582(c)(2), as a result of Amendment 750 to the United States

Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”). (DE # 747.) A week later, United

States Probation prepared and filed an addendum to Walker’s original presentence

investigation report. (DE # 748.) For the reasons that follow, Walker’s motion is denied.

       This court sentenced Walker on March 12, 1999, in connection with drug

trafficking and firearm offenses. Using the Guidelines then applicable, the court started

with a base offense level of 38 pursuant to Section 2D1.1(c)(1) of the Guidelines. (Walker

Sentencing Tr. 19, Mar. 12, 1999.) The court enhanced Walker’s base offense level by two

levels for obstruction of justice pursuant to Section 3C1.1 of the Guidelines, and by three

levels for Walker’s aggravating role as an manager or supervisor in the drug distribution

organization pursuant to Section 3B1.1(b) of the Guidelines, arriving at a total offense

level of 43. (Id. at 19-20.) The court determined that Walker’s criminal history category

was III (id. at 20), but Walker’s total offense level of 43 corresponded to a sentencing

range of life imprisonment regardless of the criminal history category. The court
      case 2:97-cr-00088-JTM-APR document 750           filed 12/02/11 page 2 of 5



sentenced Walker to life imprisonment for his drug offenses, plus an additional 360

months for his firearms offense. (Id. at 20.)

         The addendum prepared by United States Probation and filed on the docket on

November 10, 2011, states that the court found, at sentencing, that Walker was

responsible for 150 kilograms of cocaine base and 10 kilograms of powder cocaine. (DE

# 748 at 3.) The addendum states that because the total amount of drugs for which

Walker was held responsible are in excess of the amount necessary to qualify for a base

offense level of 38 under U.S.S.G. § 2D1.1(c)(1), and because his enhancements still apply

despite Amendment 750, Walker’s sentencing range of life imprisonment remains

unchanged and therefore Walker is not entitled to a reduction pursuant to Amendment

750. This is an accurate conclusion, but based on a faulty premise.

       The transcript of Walker’s sentencing reveals that the court actually found that

Walker was responsible for “greatly in excess of 150 kilograms of cocaine and more than

1.5 kilograms of cocaine base.” (Walker Sentencing Tr. 19.) Under the Guidelines at that

time, any quantity of 1.5 kilograms or more of cocaine base or 150 kilograms or more of

powder cocaine corresponded to a base offense level of 38. In Walker’s case, the court

did not engage in a computation of the total amount of narcotics attributable to Walker

because it was unnecessary; Walker was found responsible for a quantity of cocaine base

and a quantity of powder cocaine which were each, alone, sufficient to reach a base

offense level of 38– the highest possible base offense level under the Drug Quantity

Table. U.S.S.G. § 2D1.1(c).


                                                2
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       Amendment 750 has now changed the quantities associated with base offense

levels on the Drug Quantity Table. These changes are applicable to cocaine base only,

not powder cocaine. No longer does 1.5 kilograms of cocaine base correspond to an

offense level of 38. Instead, a quantity of 8.4 kilograms or more of cocaine base is

required for a base offense level of 38, and a defendant responsible for 1.5 kilograms of

cocaine base would be assigned a base offense level of only 34. Walker argues that he

should benefit from the effect that Amendment 750 has had on base offense levels for

crimes involving cocaine base.

       However, at sentencing the court found that Walker was responsible for not only

cocaine base, but also powder cocaine. (Walker Sentencing Tr. 19, finding Walker

responsible for “greatly in excess of 150 kilograms of cocaine.”) The minimum amount of

powder cocaine for which Walker was responsible (150 kilograms)1 alone corresponds to

the maximum possible base offense level for a drug offense: 38. If the court also factored

in the minimum amount of cocaine base for which Walker was responsible (1.5

kilograms), Walker’s total quantity of narcotics, for sentencing purposes, would be even

greater. As it is, 38 is the maximum possible base offense level for a drug offense, so no

further computation is necessary with regard to Walker’s base offense level. With or

without considering Walker’s cocaine base quantity, Walker’s base offense level is 38.


       1
         The court actually held that Walker was responsible for “greatly in excess of 150
kilograms of cocaine and more than 1.5 kilograms of cocaine base.” (Walker Sentencing
Tr. 19.) However, for Walker’s benefit the court utilizes, for purposes of this motion
only, the lowest possible drug quantities consistent with the findings the court made at
sentencing (only 1.5 kilograms of cocaine base and 150 kilograms of powder cocaine).

                                             3
      case 2:97-cr-00088-JTM-APR document 750              filed 12/02/11 page 4 of 5



       However, the court’s analysis does not stop at the calculation of the base offense

level. The enhancements that the court found applicable during Walker’s original

sentencing were unchanged by Amendment 750 and therefore must be applied here.

Walker’s base offense level of 38 must be increased by two levels for obstruction of

justice, and then by three levels for Walker’s aggravating role as an manager or

supervisor, resulting in a total offense level of 43. This is the same total offense level that

the court reached during Walker’s sentencing on March 12, 1999. As was the case when

Walker was originally sentenced, the sentencing range for an offense level of 43 is life

imprisonment, regardless of the defendant’s criminal history category. Thus, even given

Amendment 750, Walker’s sentencing range for his drug offenses is life imprisonment,

just as it was when Walker was originally sentenced in 1999.

       The court is authorized to reduce a sentence only when a defendant’s sentence is

“based on a sentencing range that has subsequently been lowered by the Sentencing

Commission” and the reduction is “consistent with applicable policy statements issued

by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The relevant policy statement

here provides: “A reduction in the defendant’s term of imprisonment is not consistent

with this policy statement and therefore is not authorized under 18 U.S.C. 3582(c)(2)

if . . . [a]n amendment listed in subsection (c) does not have the effect of lowering the

defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). As explained above,

even given Amendment 750, Walker’s Guidelines sentencing range for his drug offenses

is still life imprisonment. Because Walker’s sentencing range has not been lowered, he

does not qualify for a reduction. United States v. Taylor, 627 F.3d 674, 676 (7th Cir. 2010).

                                               4
     case 2:97-cr-00088-JTM-APR document 750          filed 12/02/11 page 5 of 5



      For the foregoing reasons, Walker is not eligible for a reduced sentence under

Amendment 750 and § 3582(c)(2). His motion (DE # 747) is therefore DENIED.

                                        SO ORDERED.

      Date: December 2, 2011

                                         s/ James T. Moody
                                        JUDGE JAMES T. MOODY
                                        UNITED STATES DISTRICT COURT




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