NONPRECEDENTIAL DISPOSITION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 17, 2010*
Decided March 18, 2010
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐3355
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 1:02‐cr‐10096‐1
KENNETH A. LEE, Michael M. Mihm,
Defendant‐Appellant. Judge.
O R D E R
Kenneth Lee appeals from the denial of his motion under
18 U.S.C. § 3582(c)(2) to
reduce his sentence based on Amendment 709 to the Sentencing Guidelines. We affirm.
Lee was convicted after a jury trial in 2003 of possessing more than five grams of
cocaine base with intent to distribute, see
21 U.S.C. § 841(a)(1). Because he already had more
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 09‐3355 Page 2
than one prior conviction for a violent felony, the district court sentenced him as a career
offender to 262 months’ imprisonment. We affirmed his conviction and sentence. United
States v. Lee,
413 F.3d 622, 628 (7th Cir. 2005); United States v. Lee, 170 F. App’x 425, 426 (7th
Cir. 2006). He then moved unsuccessfully under § 3582(c)(2) to modify his sentence based
on Amendment 706 to the Guidelines; we affirmed the denial of that motion. United States
v. Lee, No. 08‐2508 (7th Cir. Feb. 2, 2009) (unpublished order).
In August 2009 Lee moved again under § 3582(c)(2) for a sentence reduction, this
time based on Amendment 709 to the guidelines. That amendment, which took effect
November 1, 2007, instructs district courts, when assessing a defendant’s criminal history,
to treat as a single sentence all prior sentences that were imposed on the same day. See
U.S.S.G. § 4A1.2(a)(2). Lee, who had been sentenced on the same day for three armed
robberies committed weeks apart, asserted that Amendment 709 entitled him to a reduced
sentence. The district court denied his motion because Amendment 709 is not retroactive
and thus not grounds for a modification.
Section 3582(c)(2) permits a district court to reduce a defendant’s sentence if his
guidelines range has subsequently been lowered by the Sentencing Commission and “such
a reduction is consistent with applicable policy statements.” The applicable policy
statement, U.S.S.G. § 1B1.10(a)(2)(A), permits a district court to modify a sentence only if
one of the retroactive amendments enumerated in § 1B1.10(c) applies to the defendant.
Amendment 709 is not one of those amendments, and so the district court had no authority
to reduce Lee’s sentence. See United States v. Alexander,
553 F.3d 591, 593 (7th Cir. 2009).
Lee recognizes that the Sentencing Commission did not make Amendment 709
retroactive, but argues under United States v. Booker,
543 U.S. 220 (2005), that the district
court erred in its § 3582(c)(2) analysis by treating the policy statement as mandatory. He
also points to United States v. Horn,
590 F. Supp. 2d 976 (M.D. Tenn. 2008), appeal docketed,
No. 09‐5090 (6th Cir. Jan. 29, 2009), in which a district court concluded that it had discretion
to modify a sentence despite the policy statement and applied Amendment 709
retroactively. But Lee’s argument is foreclosed by United States v. Cunningham,
554 F.3d 703,
707‐08 (7th Cir. 2009), in which we held that policy statements in U.S.S.G. § 1B1.10 were
consistent with Booker and Congress’s intent in § 3582(c)(2), and “should . . . be viewed as
part of the statute.”
Lee also argues that Amendment 709 applies retroactively because it is “clarifying,”
as opposed to “substantive.” Under U.S.S.G. § 1B1.11(b)(2), a sentencing court must apply
the guidelines manual in effect on a particular date in its entirety, as well as “subsequent
amendments, to the extent that such amendments are clarifying rather than substantive
changes.” But Lee is wrong; Amendment 709 is substantive. See Alexander,
553 F.3d at 592
No. 09‐3355 Page 3
(“But Amendment 709 changed the guideline rather than merely clarifying it. . . .”); see also
United States v. Marler,
527 F.3d 874, 877 n.1 (9th Cir.), cert. denied,
129 S. Ct. 427 (2008);
United States v. Wood,
526 F.3d 82, 87‐88 (3d Cir.), cert. denied,
129 S. Ct. 308 (2008).
Accordingly, we AFFIRM the judgment of the district court.
