NONPRECEDENTIAL DISPOSITION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 April 19, 2010
Decided August 20, 2010
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
WILLIAM C. GRIESBACH, District Judge1
No. 09‐1390
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District
of Indiana, Hammond Division.
v.
No. 2:98‐cr‐00078‐RL‐APR‐7
RADAR TYLER,
Defendant‐Appellant. Rudy Lozano,
Judge.
O R D E R
In 2002, a jury found Radar Tyler guilty of conspiring to distribute crack cocaine, in
violation of
21 U.S.C. § 846, and possession with intent to distribute crack cocaine, in violation
of
21 U.S.C. § 841(a). The district court sentenced him to 295 months incarceration, a total term
of supervised release of five years, and a special assessment of $300.
1
Hon. William C. Griesbach, District Judge for the Eastern District of Wisconsin, is
sitting by designation.
No. 09‐1390 Page 2
After the Sentencing Commission reduced the Guideline ranges for crack cocaine that
retroactively reduced the base offense level for crack cocaine offenses by two levels, Tyler asked
the district court to reduce his sentence, as
18 U.S.C. § 3582(c)(2) permits. The district court
entered an order reducing his sentence by two levels but concluded that it lacked authority to
further reduce the sentence below the retroactive Guidelines amendment range. This decision
was correct.
In United States v. Cunningham,
554 F.3d 703, 708 (7th Cir. 2009), we held that district
courts do not have authority to impose a sentence below the amended Guideline range. Tyler
conceded that our decision in Cunningham foreclosed his argument, but he nonetheless wished
to preserve his argument in light of the Supreme Court’s grant of certiorari in United States v.
Dillon,
572 F.3d 146 (3d Cir. 2009), cert. granted,
130 S. Ct. 797 (2009). The Supreme Court issued
its opinion on June 17, 2010. Dillon v. United States,
130 S. Ct. 2683 (2010).
Dillon held that Booker did not apply to § 3582 proceedings, and so the restrictions that
§ 1B1.10 places on a sentence modification are mandatory rather than advisory. Id. at 2693. We
cited Dillon for the proposition that “neither the statute nor the Constitution requires the judge
to conduct a full re‐sentencing in response to a [sentence‐reduction] motion.” United States v.
Neal, No. 08‐3611,
2010 WL 2652463, at *1 (7th Cir. July 6, 2010). Rather, as Dillon held,
Ҥ 3582(c)(2) represents a congressional act of lenity intended to give prisoners the benefit of
later enacted adjustments to the judgments reflected in the Guidelines.”
130 S. Ct. at 2692. Our
holding in Cunningham is on all fours with Dillon: because a sentence modification is not a full
re‐sentencing, Booker does not apply and district courts are bound by the minimum amended
Guidelines range. See Cunningham,
554 F.3d at 707‐08. Therefore, the district court was correct
that it lacked authority to further lower Tyler’s sentence beyond the two levels permitted by
the amended Guideline.
AFFIRMED.
