United States v. Jacoby Walker , 471 F. App'x 528 ( 2012 )

NONPRECEDENTIAL DISPOSITION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 14, 2012
Decided March 21, 2012
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 11‐3786
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District
of Indiana, Hammond Division.
v.
No. 2:97‐cr‐00088‐JTM‐APR‐3
JACOBY WALKER,
Defendant‐Appellant. James T. Moody,
Judge.
O R D E R
We summarily AFFIRM and adopt as the Order of this court the Order dated
December 2, 2011, issued by Judge James T. Moody of the United States District Court for the
Northern District of Indiana, Hammond Division, attached hereto.
case 2:97-cr-00088-JTM-APR document 750 filed 12/02/11 page 1 of 5
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA )
)
v. ) No. 2:97 CR 88
)
JACOBY WALKER )
ORDER
Defendant Jacoby Walker filed a pro se motion seeking a reduction in his sentence
pursuant to 18 U.S.C. § 3582(c)(2), as a result of Amendment 750 to the United States
Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”). (DE # 747.) A week later, United
States Probation prepared and filed an addendum to Walker’s original presentence
investigation report. (DE # 748.) For the reasons that follow, Walker’s motion is denied.
This court sentenced Walker on March 12, 1999, in connection with drug
trafficking and firearm offenses. Using the Guidelines then applicable, the court started
with a base offense level of 38 pursuant to Section 2D1.1(c)(1) of the Guidelines. (Walker
Sentencing Tr. 19, Mar. 12, 1999.) The court enhanced Walker’s base offense level by two
levels for obstruction of justice pursuant to Section 3C1.1 of the Guidelines, and by three
levels for Walker’s aggravating role as an manager or supervisor in the drug distribution
organization pursuant to Section 3B1.1(b) of the Guidelines, arriving at a total offense
level of 43. (Id. at 19-20.) The court determined that Walker’s criminal history category
was III (id. at 20), but Walker’s total offense level of 43 corresponded to a sentencing
range of life imprisonment regardless of the criminal history category. The court
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sentenced Walker to life imprisonment for his drug offenses, plus an additional 360
months for his firearms offense. (Id. at 20.)
The addendum prepared by United States Probation and filed on the docket on
November 10, 2011, states that the court found, at sentencing, that Walker was
responsible for 150 kilograms of cocaine base and 10 kilograms of powder cocaine. (DE
# 748 at 3.) The addendum states that because the total amount of drugs for which
Walker was held responsible are in excess of the amount necessary to qualify for a base
offense level of 38 under U.S.S.G. § 2D1.1(c)(1), and because his enhancements still apply
despite Amendment 750, Walker’s sentencing range of life imprisonment remains
unchanged and therefore Walker is not entitled to a reduction pursuant to Amendment
750. This is an accurate conclusion, but based on a faulty premise.
The transcript of Walker’s sentencing reveals that the court actually found that
Walker was responsible for “greatly in excess of 150 kilograms of cocaine and more than
1.5 kilograms of cocaine base.” (Walker Sentencing Tr. 19.) Under the Guidelines at that
time, any quantity of 1.5 kilograms or more of cocaine base or 150 kilograms or more of
powder cocaine corresponded to a base offense level of 38. In Walker’s case, the court
did not engage in a computation of the total amount of narcotics attributable to Walker
because it was unnecessary; Walker was found responsible for a quantity of cocaine base
and a quantity of powder cocaine which were each, alone, sufficient to reach a base
offense level of 38– the highest possible base offense level under the Drug Quantity
Table. U.S.S.G. § 2D1.1(c).
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case 2:97-cr-00088-JTM-APR document 750 filed 12/02/11 page 3 of 5
Amendment 750 has now changed the quantities associated with base offense
levels on the Drug Quantity Table. These changes are applicable to cocaine base only,
not powder cocaine. No longer does 1.5 kilograms of cocaine base correspond to an
offense level of 38. Instead, a quantity of 8.4 kilograms or more of cocaine base is
required for a base offense level of 38, and a defendant responsible for 1.5 kilograms of
cocaine base would be assigned a base offense level of only 34. Walker argues that he
should benefit from the effect that Amendment 750 has had on base offense levels for
crimes involving cocaine base.
However, at sentencing the court found that Walker was responsible for not only
cocaine base, but also powder cocaine. (Walker Sentencing Tr. 19, finding Walker
responsible for “greatly in excess of 150 kilograms of cocaine.”) The minimum amount of
powder cocaine for which Walker was responsible (150 kilograms)1 alone corresponds to
the maximum possible base offense level for a drug offense: 38. If the court also factored
in the minimum amount of cocaine base for which Walker was responsible (1.5
kilograms), Walker’s total quantity of narcotics, for sentencing purposes, would be even
greater. As it is, 38 is the maximum possible base offense level for a drug offense, so no
further computation is necessary with regard to Walker’s base offense level. With or
without considering Walker’s cocaine base quantity, Walker’s base offense level is 38.
1
The court actually held that Walker was responsible for “greatly in excess of 150
kilograms of cocaine and more than 1.5 kilograms of cocaine base.” (Walker Sentencing
Tr. 19.) However, for Walker’s benefit the court utilizes, for purposes of this motion
only, the lowest possible drug quantities consistent with the findings the court made at
sentencing (only 1.5 kilograms of cocaine base and 150 kilograms of powder cocaine).
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case 2:97-cr-00088-JTM-APR document 750 filed 12/02/11 page 4 of 5
However, the court’s analysis does not stop at the calculation of the base offense
level. The enhancements that the court found applicable during Walker’s original
sentencing were unchanged by Amendment 750 and therefore must be applied here.
Walker’s base offense level of 38 must be increased by two levels for obstruction of
justice, and then by three levels for Walker’s aggravating role as an manager or
supervisor, resulting in a total offense level of 43. This is the same total offense level that
the court reached during Walker’s sentencing on March 12, 1999. As was the case when
Walker was originally sentenced, the sentencing range for an offense level of 43 is life
imprisonment, regardless of the defendant’s criminal history category. Thus, even given
Amendment 750, Walker’s sentencing range for his drug offenses is life imprisonment,
just as it was when Walker was originally sentenced in 1999.
The court is authorized to reduce a sentence only when a defendant’s sentence is
“based on a sentencing range that has subsequently been lowered by the Sentencing
Commission” and the reduction is “consistent with applicable policy statements issued
by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The relevant policy statement
here provides: “A reduction in the defendant’s term of imprisonment is not consistent
with this policy statement and therefore is not authorized under 18 U.S.C. 3582(c)(2)
if . . . [a]n amendment listed in subsection (c) does not have the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). As explained above,
even given Amendment 750, Walker’s Guidelines sentencing range for his drug offenses
is still life imprisonment. Because Walker’s sentencing range has not been lowered, he
does not qualify for a reduction. United States v. Taylor, 627 F.3d 674, 676 (7th Cir. 2010).
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case 2:97-cr-00088-JTM-APR document 750 filed 12/02/11 page 5 of 5
For the foregoing reasons, Walker is not eligible for a reduced sentence under
Amendment 750 and § 3582(c)(2). His motion (DE # 747) is therefore DENIED.
SO ORDERED.
Date: December 2, 2011
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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