United States v. Willie Herron , 362 F. App'x 565 ( 2010 )

NONPRECEDENTIAL DISPOSITION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 January 21, 2010
Decided January 26, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09-1336
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v.
No. 04-cr-49-bbc
WILLIE HERRON,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
Willie Herron pleaded guilty to distributing crack cocaine, see 21 U.S.C. § 841(a)(1),
and we upheld his conviction and sentence of 188 months’ imprisonment. United States v.
Herron, 139 F. App’x. 750, 752 (7th Cir. 2005). After the Sentencing Commission
retroactively reduced the base offense level for most crack offenses, see U.S.S.G. supp. to
app. C, 221-26, 253 (2008) (Amendments 706 and 713), Herron requested the district court
to lower his sentence, See 18 U.S.C. § 3582(c)(2), and asked for a reduced sentence of 130
months’ imprisonment, the bottom of the amended guidelines range, in spite of the fact
that his original sentence had been at the top of the former guidelines range. The district
court agreed to reduce Herron’s sentence and chose a prison term of 146 months, the
No. 09-1336 Page 2
middle of the new range. Herron appeals, but his appointed counsel after review moves to
withdraw because he cannot identify any nonfrivolous argument. See Anders v. California,
386 U.S. 738 (1967). Herron failed to respond to counsel’s submission. See C IR. R. 51(b).
We confine our review to the potential issues identified in counsel’s facially adequate brief.
See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel presents only one potential argument in his brief. He considers arguing
that the district court abused its discretion by sentencing Herron to the middle instead of
the bottom of the new sentencing range. Counsel concluded that this argument would be
frivolous, and we agree. Section 3582(c)(2) permits, but does not require that the district
court reduce Herron’s prison sentence, see United States v. Forman, 553 F.3d 585, 588 (7th Cir.
2009), and § 3582(c)(2) does not entitle the defendant to a full resentencing. See United
States v. Young, 555 F.3d 611, 614-15 (7th Cir. 2009). Imposition of the sentence is
discretionary within the guideline range and the district court must determine what the
defendant’s guideline range would have been if the amended guidelines had been in effect
at the time of the original sentencing, see U.S.S.G. § 1B1.10(b)(1), and consider the extent to
which a reduction is warranted, see id. § 1B1.10 cmt. n.1(B); United States v. Johnson, 580 F.3d
567, 570 (7th Cir. 2009). Here the district court did consider just that. The court addressed
the 18 U.S.C. § 3553(a) factors that had prompted Herron’s original sentence. The court
also weighed Herron’s argument that the disparity between crack and powder cocaine
supported a lower sentence against the government’s position that Herron’s original top-
of-the-range sentence warranted a resentencing at the top of the amended range. After
considering these countervailing interests, the sentencing court concluded that 146 months’
imprisonment sufficiently carried out the statutory purposes of sentencing. Section
3582(c)(2) confers broad discretion upon the district court to determine the appropriate
extent of a reduction, see Young, 555 F.3d at 614-15, and based on this record we refuse to
conclude that the judge abused this discretion.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.