NONPRECEDENTIAL DISPOSITION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 October 24, 2012*
Decided October 25, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐1661
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 07‐40095
WILLIE B. PARKS, Michael M. Mihm,
Defendant‐Appellant. Judge.
O R D E R
Willie B. Parks appeals the denial of his motion under
18 U.S.C. § 3582(c)(2) to
reduce his sentence based on amendments that retroactively lowered the base offense level
for his crack‐cocaine offense. See U.S.S.G. App. C., Amend. 748, 750, 759. The district court
denied the motion because of Parks’ post‐sentencing conduct. We affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 12‐1661 Page 2
While buying and selling crack cocaine in the Quad Cities, Parks unwittingly
arranged to meet a police informant in the business district of Rock Island, Illinois, and
soon found his van surrounded by police. He ignored commands to stop and tried to speed
away, hitting one officer with his van before crashing into a tree. Parks pleaded guilty to
possessing crack cocaine with intent to distribute, see
21 U.S.C. § 841(a)(1) and (b)(1)(B), and
two gun crimes. See
18 U.S.C. § 924(c)(1)(A);
18 U.S.C. §§ 922(g), 924(a)(2). Determining that
Parks was responsible for 77 grams of crack cocaine, the court sentenced him below the
guidelines range (188–235 months) to 180 months. See U.S.S.G. § 2D1.1(c)(5) (2008). Parks
filed a notice of appeal, but we dismissed his appeal after his lawyer filed a brief under
Anders v. California,
386 U.S. 738 (1967), concluding that Parks had no nonfrivolous issues to
pursue. United States v. Parks,
352 Fed. Appx. 107 (7th Cir. 2009).
Parks moved to reduce his sentence under
18 U.S.C. § 3582(c)(2) after the
Sentencing Commission retroactively decreased the base offense level for his crack‐cocaine
offense by four. See U.S.S.G. App. C., Amend. 750, 759. Because he had originally received a
below‐guidelines sentence, he sought a sentence at the bottom of the new range of 121 to
151 months. See U.S.S.G. § 2D1.1(c)(7). The judge declined to reduce his sentence after
analyzing three incidents of prison misbehavior: a fight between Parks and another inmate,
a homemade knife found in his cell, and a contraband cellphone found in his locker.
Although he did not deny the conduct, Parks tried to excuse the behavior based on the
harsh difficulties of prison life and argued that he had already been sanctioned at the
institutional level with the loss of good time. The district court commended Parks for
completing prison programs and classes, but concluded that the severity of his prison
misconduct made it inappropriate to reduce his sentence.
On appeal, Parks asserts that the retroactive amendments are a nondiscretionary
change in the law. He also argues that the district court abused its discretion by relying on
his prison infractions without considering other factors such as his loss of good time or the
sentencing factors under
18 U.S.C. § 3553(a).
Parks misconstrues the nature of § 3582(c)(2) motions. First, § 3582(c)(2) motions are
discretionary and must be consistent with the Sentencing Commission’s policy statements.
See Dillon v. United States,
130 S. Ct. 2683, 2692 (2010). Second, under the applicable policy
statements, courts may consider post‐sentencing conduct when determining “whether a
reduction in the defendant’s term of imprisonment is warranted.” U.S.S.G. § 1B1.10,
cmt. n.1(B)(iii); United States v. Young,
555 F.3d 611, 613 (7th Cir. 2009). The judge here
reasonably found a reduction inappropriate given that the fight, knife, and cellphone posed
grave security risks and demonstrated a pattern of serious misconduct. Having concluded
that a reduction was inconsistent with the policy statement on post‐sentencing conduct, the
court did not need to discuss
18 U.S.C. § 3553(a) factors because they are relevant only
No. 12‐1661 Page 3
“within the limits of the applicable policy statements.” United States v. Cunningham,
554
F.3d 703, 708 (7th Cir. 2009); see
18 U.S.C. § 3582(c)(2).
Parks’s remaining arguments require little discussion. He maintains that he should
have been resentenced under United States v. Booker,
543 U.S. 220 (2005), and that the court
relied on incorrect drug amounts at his original sentencing. Both arguments lack merit
because § 3582(c)(2) does not authorize the judge to conduct a resentencing or reconsider
facts decided at the original sentencing. Dillon,
130 S. Ct. at 2694.
AFFIRMED.
