NONPRECEDENTIAL DISPOSITION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 4, 2011*
Decided March 14, 2011
Before
WILLIAM J. BAUER, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09‐2237
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff‐Appellee, for the Northern District of Illinois, Eastern
Division.
v.
No. 01 CR 907‐2
JERMAINE WEEDEN,
Defendant‐Appellant. Ronald A. Guzmán,
Judge.
O R D E R
Jermaine Weeden pleaded guilty in 2004 to two counts of possessing with intent to
distribute crack cocaine, see
21 U.S.C. § 841(a)(1), and was sentenced to a total of 188
months’ imprisonment as a career offender, see U.S.S.G. § 4B1.1. We affirmed the judgment
following a post‐Booker limited remand in which the district court advised us that it would
*
This appeal is successive to case no. 04‐2685 and has been submitted to this panel
under Operating Procedure 6(b). After examining the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs
and the record. See Fed. R. App. P. 34(a)(2).
No. 09‐2237 Page 2
have imposed the very same sentence had it known that the sentencing guidelines are
advisory. United States v. Weeden, 176 F. App’x 663 (7th Cir. 2006) (nonprecedential
decision); see United States v. Booker,
543 U.S. 220 (2005); United States v. Paladino,
401 F.3d
471, 484 (7th Cir. 2005). Weeden then moved under
18 U.S.C. § 3582(c)(2) for a lower
sentence after the Sentencing Commission retroactively amended U.S.S.G. § 2D1.1 to lower
the base offense levels for some crack offenses. See U.S.S.G. Supp. to App. C. 226‐31, 253
(2009) (Amends. 706 & 713). The district court denied this motion on the ground that
Weeden is not eligible for a reduction because the imprisonment range underlying his
sentence remains unchanged after the retroactive amendments. We affirm this ruling.
The only issue here is whether § 3582(c)(2) authorized the district court to reconsider
Weeden’s prison sentence. Section 3582(c)(2) permits a district court to revisit a sentence if
the defendant is serving “a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” Section 1B1.10, which
implements this statutory provision, explains that a postsentence reduction is not
authorized if a retroactive amendment “is inapplicable to the defendant” or “does not have
the effect of lowering the defendant’s applicable sentencing range.” U.S.S.G. § 1B1.10(a)(2).
Defendants who qualify as career offenders because of convictions involving crack cannot
obtain relief under § 3582(c)(2) because their imprisonment ranges were driven not by
§ 2D1.1 but by § 4B1.1, which has not been amended. See United States v. Forman,
553 F.3d
585, 589 (7th Cir. 2009); United States v. Sharkey,
543 F.3d 1236, 1239 (10th Cir. 2008); United
States v. Moore,
541 F.3d 1323, 1327‐28 (11th Cir. 2008); United States v. Thomas,
524 F.3d 889,
890 (8th Cir. 2008).
Weeden tries to escape our holding in Forman by speculating that his prison sentence
“may not have been driven” entirely by his status as a career offender. He accepts that the
career‐offender guideline alone determined his original sentence but insists that “it is
entirely possible” that the district court decided to “affirm” his prison sentence during the
limited remand by focusing on both the career‐offender guideline and also “the sentencing
range for the underlying crack offenses.” Nothing at all in the record supports this
conjecture, but still Weeden urges us to remand the case so that the district court can specify
which guidelines were at play on remand.
The premise of Weeden’s argument is untenable after our recent decision in United
States v. Guyton, slip op. No. 09‐3866,
2011 WL 590110, at *3 (7th Cir. Feb. 22, 2011). There
we made explicit what before we thought implicit from the structure of the guidelines: the
only applicable guidelines range for the purposes of § 3582(c) is the range established before
the district court makes a departure. Id. Our decision in Guyton falls in line with rulings in
other circuits that a sentencing court can deviate from a properly calculated imprisonment
range but cannot depart to a different range entirely. See United States v. Hameed, 614 F.3d
No. 09‐2237 Page 3
259, 260 (6th Cir. 2010); United States v. Darton,
595 F.3d 1191, 1195‐96 (10th Cir. 2010);
United States v. Blackmon,
584 F.3d 1115, 1116‐17 (8th Cir. 2010); United States v. Doe,
564 F.3d
305, 311 (3rd Cir. 2009). Indeed, the very idea of departing from, or deviating from, a
guidelines range underscores that the range is a constant whether the sentence falls in or out
of that range. Darton,
595 F.3d at 1195‐96. Still, we recognize that several circuits have held
that § 3582(c)(2) does permit a reduction if the sentencing court originally elected to
disregard the career‐offender range and sentence the defendant as if § 2D1.1 was the
applicable offense guideline. See United States v. Cardosa,
606 F.3d 16, 21 (1st Cir. 2010);
United States v. Munn,
595 F.3d 183, 192 (4th Cir. 2010); United States v. McGee,
553 F.3d 225,
228 (2nd Cir. 2008); United States v. Moore,
541 F.3d 1323, 1329‐30 (11th Cir. 2008).
But we can resolve Weeden’s appeal without wading further into this debate. For
one thing, nothing in the district court’s response on limited remand or its order denying
the § 3582(c)(2) motion even remotely suggests that the court would have based an advisory
sentence on anything other than Weeden’s career‐offender designation. More immediately,
however, Weeden’s argument misconceives the nature of a limited remand under Paladino.
For the sentencing court to have done what Weeden supposes the court did—“affirm” his
prison sentence on a ground different from which it was imposed—the court needed
jurisdiction over his case. But we never relinquish jurisdiction when we issue a Paladino
remand; we simply invite the district court to tell us whether knowing about Booker would
have altered its view of the appropriate sentence, and only if the answer is yes do we vacate
the sentence and reconfer jurisdiction on the district court. See Paladino,
401 F.3d at 484; see
also United States v. Mansoori,
480 F.3d 514, 524 (7th Cir. 2007); United States v. Macari,
453
F.3d 926, 942 (7th Cir. 2006). And since the district court told us that greater discretion
would not have done Weeden any good, we never sent the case back for resentencing. It is
Weeden’s sentence under the career‐offender guideline—the only sentence that has ever
been imposed—which underlies his § 3582(c) motion, and so Weeden was not eligible for a
sentence reduction under § 3582(c)(2). See Forman,
553 F.3d at 589.
AFFIRMED.
