NONPRECEDENTIAL DISPOSITION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 November 4, 2010*
Decided November 18, 2010
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 10‐2709
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff‐Appellee, Central District of Illinois
v. No. 03 CR 20057
TONY T. CLARK, Michael P. McCuskey, Chief Judge
Defendant‐Appellant.
O R D E R
In 2004, Tony Clark was convicted of possessing 50 grams of cocaine base with intent
to distribute it, see
21 U.S.C. § 841(a), and sentenced to life imprisonment. His sentence
stemmed from the district court’s conclusion that Clark was a career offender on account of
two prior drug convictions. After factoring in his prior convictions and criminal history, the
court sentenced him to a mandatory minimum term of life imprisonment, see
21 U.S.C.
§ 841(b)(1)(A)(iii), a sentence we affirmed on direct appeal, see United States v. Clark, 182 Fed.
*
This successive appeal has been submitted to the original panel under Operating
Procedure 6(b).
No. 10‐2709 2
App’x. 540, 544 (7th Circuit 2006) (unpublished order). Clark then petitioned
unsuccessfully to vacate or set aside his sentence under
28 U.S.C. § 2255. Most recently,
Clark moved pro se to reduce his sentence under
18 U.S.C. § 3582(c)(2), citing Amendment
706, which reduced the base offense level by two levels for defendants sentenced under
U.S.S.G. § 2D1.1 for offenses involving cocaine base. U.S.S.G. app. C, amend. 706 (Supp.
2007). Recognizing that Amendment 706 does not affect offenders like Clark who were
sentenced as career offenders under U.S.S.G. § 4B1.1, the district court denied Clark’s
motion. Likewise, the district court rejected Clark’s attack on the two prior drug
convictions used at sentencing to support his classification as a career offender. Clark
appeals.
On appeal, Clark concedes that because he was sentenced as a career offender
Amendment 706 cannot assist him. See, e.g., United States v. Knox,
573 F.3d 441, 450 (7th Cir.
2009) (Amendment 706 inapplicable to career offenders because amendment to U.S.S.G.
§ 2D1.1 does not lower U.S.S.G. § 4B1.1 guideline ranges). Instead, he revives his attack on
the underlying felony drug convictions that caused him to be sentenced as a career offender.
For instance, he characterizes himself as “actually innocent” of being a career offender
because his underlying convictions were insufficient to trigger the career offender provision
of § 841(b)(1)(A)(iii). But as the government notes, § 3582(c)(2)—limited as it is to those
situations where the Sentencing Commission has made a retroactive change to an applicable
guideline range—cannot serve as a vehicle to challenge Clark’s prior drug convictions. See
Dillon v. United States,
130 S. Ct. 2683, 2694 (2010) (aspects of defendant’s sentence
unaffected by guideline amendments “are outside the scope of the proceeding authorized
by § 3582(c)(2).”) Thus, Clark cannot use § 3582(c) to challenge the appropriateness of his
original sentence. United States v. Jackson,
573 F.3d 398, 400 (7th Cir. 2009); United States v.
Lloyd,
398 F.3d 978, 979 (7th Cir. 2005). Indeed, a district court lacks subject matter
jurisdiction to consider a defendant’s § 3582(c)(2) request for a reduced sentence when, as is
the case here, the defendant’s sentencing range has not been subsequently lowered by the
Commission. United States v. Forman,
553 F.3d 585, 588 (7th Cir. 2009) (per curiam). Thus,
the district court was correct to reject Clark’s attempt to relitigate the issue of his underlying
drug convictions. Jackson,
573 F.3d at 400; cf. Custis v. United States,
511 U.S. 485, 487 (1994)
(defendant may not collaterally attack recidivist enhancement unless conviction obtained in
violation of the right to counsel). Likewise, as discussed above, Clark’s status as a career
offender places him outside the ambit of Amendment 706. E.g., Knox
573 F.3d at 450. We
thus AFFIRM the judgment of the district court.
