NONPRECEDENTIAL DISPOSITION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 14, 2011
Decided November 14, 2011
Before
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 07‐2272, 07‐3893, 07‐3940 &
07‐4010
UNITED STATES OF AMERICA, Appeals from the United States
District Court for the Northern
Plaintiff‐Appellee, District of Illinois, Eastern Division.
v. No. 04 CR 495
TROY MARTIN, EDDIE BELL, Rebecca R. Pallmeyer, Judge.
JOHN BRAYBOY, MARIO TAYLOR
and JEROME TERRELL,
Defendants‐Appellants.
O R D E R
In a previous opinion, we affirmed the convictions of Troy Martin, Eddie Bell, John
Brayboy and Mario Taylor, but ordered a limited remand so that the district court could
“address the effect of both the 2007 Amendment to U.S.S.G. § 2D1.1 and Kimbrough v. United
Nos. 07‐2272, 07‐3893, 07‐3940 & 07‐4010 Page 2
States, 552 U.S. 85 (2007).” United States v. Martin, 618 F.3d 705, 739 (7th Cir. 2010) (parallel
citations omitted).
In the district court, Mr. Martin moved for a reduction in sentence pursuant to 18
U.S.C. § 3582(c); Messrs. Bell, Brayboy and Taylor all requested that the district court
indicate that, had it understood its discretion to do so, it would have imposed lesser
sentences to account for the Guidelines’ disparate treatment of offenses involving crack and
powder cocaine. Mr. Taylor also argued that, although he was sentenced under the career
offender guideline, the district court was free to deviate from that guideline as well, see
United States v. Corner, 598 F.3d 411 (7th Cir. 2010), and should do so in his case.
The Government opposed Mr. Martin’s motion and urged the district court to
decline the other defendants’ requests. The Government argued that Mr. Martin had not
“explain[ed] how the change in the crack guideline benefits him.” R.2450 at 3. The
Government submitted that
the Court should find that he is not eligible for a reduction under § 3582(c),
because a defendant who is accountable for more than 4.5 kilograms of crack
cocaine (the quantity needed to reach the highest base offense level, which is
level 38, under the applicable, retroactive 2007 guidelines), is ineligible for
relief. United States v. Forman, 553 F.3d 585, 590 (7th Cir. 2009).
Id.
With respect to the remaining defendants, the Government maintained that a further
reduction under Kimbrough was not warranted. Turning to Mr. Taylor, the Government
noted that Mr. Taylor’s offense level was supported by the amount of powder cocaine for
which he was responsible. The Government further submitted that Mr. Taylor had failed to
preserve his argument that the district court could deviate from the career offender
guideline. Nevertheless, his “degree of involvement . . ., his responsibility for a large
amount of cocaine, and his criminal history all justify the Court’s adherence to the career‐
offender guideline.” Id. at 7. With respect to Mr. Brayboy and Mr. Bell, although they were
sentenced, at least in part, with reference to the crack guideline, their sentences were amply
justified by their lengthy criminal histories, which included murder (Mr. Brayboy) and use
of weapons (Mr. Bell). Finally, the Government argued that, although Mr. Martin was
sentenced under the crack guideline, “the reasons for imposing the life sentence were
unrelated to the crack/powder disparity.” Id. at 11. Specifically, Mr. Martin had led the
Mafia Insanes gang and had controlled the crack and heroin distribution in large parts of
Chicago’s west side. Additionally, his criminal history included convictions for murder,
aggravated battery and possession of firearms. For all of these reasons, the Government
Nos. 07‐2272, 07‐3893, 07‐3940 & 07‐4010 Page 3
urged the district court to determine that it was satisfied with the defendants’ sentences and
was not inclined to revisit them.
In considering the parties’ submissions, the district court first noted
that of the four Defendants involved here, only Troy Martin was sentenced
prior to the effective date of the 2007 Amendment. The sentences imposed on
Defendants Bell, Taylor, and Brayboy all took account of that Amendment.
Moreover, . . . for two of these Defendants, the discretion recognized in
Kimbrough is irrelevant: the Guidelines for Defendants Taylor and Brayboy
were based on quantities of drugs other than [crack] cocaine.
R.2483 at 2. With respect to Mr. Martin, the district court concluded that “the evidence
readily supports a finding that Martin was responsible for distributing more than 4.5
kilograms of crack cocaine. And the Guideline calculations placed him at an offense level
higher than necessary to qualify for a life sentence.” Id. at 2‐3 (citations omitted). As to the
Kimbrough issue, the court noted that, “[a]lthough the Guidelines dictated a lengthy
sentence, the court is confident that Martin’s sentence was driven by factors unrelated to the
specific quantity of drugs, significant though it was.” Id. at 3.
Turning to the remaining defendants, the court rejected Mr. Bell’s argument that,
had it employed the powder cocaine guideline, as opposed to the crack guideline, he only
would have received a sentence of 150 months. It explained:
What is apparent from the sentencing, however, is that the drug quantity
drew little attention from the court in considering Mr. Bell’s sentence. Those
calculations influenced the court’s decision but only in the sense that, had
powder cocaine quantities driven the calculation, the court would have begun
with a lower Guideline range when it determined what sentence was
reasonable, in light not only of the Guidelines, but also of § 3553 factors.
Under no circumstances would a sentence shorter than 300 months be
appropriate. . . .
Id. at 5. With respect to Mr. Taylor, the court agreed that there was no basis for revisiting
his sentence because he had been sentenced based upon his distribution of powder cocaine.
Moreover, the court observed, Mr. Taylor’s criminal history was “very troubling.” Id.
Finally, although the district court noted that Mr. Brayboy was sentenced under the crack
cocaine guideline, Mr. Brayboy’s “own calculations of the amount of powder cocaine for
which he was responsible supported the same base offense level.” Id. at 6. The court,
therefore, concluded that
Nos. 07‐2272, 07‐3893, 07‐3940 & 07‐4010 Page 4
[h]ad the court been aware of its discretion to deviate from the 100:1 crack‐to‐
cocaine ratio, it would nevertheless have imposed the same sentences on
Defendants Martin and Bell. The Guideline calculations for Defendants
Taylor and Brayboy were determined by reference to powder cocaine, not
crack cocaine, and their sentences, too, are amply supported by the record.
The court declines to resentence any of these Defendants.
Id. at 7.
After the district court notified us of its determination, we invited the parties to file
submissions addressing the appropriate disposition of the appeal in light of the district
court’s decision. None of the parties acted on this invitation.1 Because the district court
indicated that, had it been aware of its discretion to deviate from the crack cocaine
guideline, it nevertheless would have imposed the same sentence on each of the defendants,
the sentences of Mr. Martin, Mr. Bell, Mr. Brayboy and Mr. Taylor are affirmed.
AFFIRMED
1
Mr. Martin has not filed an appeal from the order of the district court of October 7,
2011.
