United States v. Litto Perez , 249 F.3d 583 ( 2001 )

249 F.3d 583 (7th Cir. 2001)

United States of America, Plaintiff-Appellee,
v.
Litto Perez, Defendant-Appellant.

No. 00-3895

In the United States Court of Appeals For the Seventh Circuit

Argued April 12, 2001
Decided April 16, 2001*

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 CR 301--Milton I. Shadur, Judge.

Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges.

PER CURIAM.

1

Convicted of conspiring to possess cocaine with intent to distribute that drug, and sentenced to 46 months' imprisonment, Litto Perez raises a single argument on appeal: he contends that the district judge erred in concluding that he lacks authority to grant Perez a re- duction under U.S.S.G. sec.3B1.2 for playing a minor or minimal role in that offense. The district court recognized that, under the interpretation prevailing in this circuit, sec.3B1.2 does not per- mit a reduction when a defendant is held accountable only for drugs that he han- dled personally, as Perez was. E.g., United States v. Cruz, 233 F.3d 492 (7th Cir. 2000); United States v. Isienyi, 207 F.3d 390 (7th Cir. 2000); United States v. Burnett, 66 F.3d 137 (7th Cir. 1995). Perez asks us to reconsider that posi- tion. Many other defendants have made that request before him, and we have always declined, for reasons laid out in Cruz.

2

Perez observes that the Sentencing Commission may not share our view. It has published for comment a draft amendment that would depart from the position this circuit follows. 75 Fed. Reg. 66,792 (Nov. 7, 2000). But proposals to amend the Guidelines do not invariably lead to amendments--they must first be promulgat- ed and then left undisturbed by Congress- -and judges must apply the Guidelines in force when a defendant is sentenced. United States v. Buckowich, 243 F.3d 1081, 1084-85 (7th Cir.2001); United States v. Jackson, 103 F.3d 561, 571-73 (7th Cir. 1996). Amendments apply only to sentences pronounced after the changes go into force, unless the Commis- sion makes them retroactive. 18 U.S.C. sec. 3582(c)(2); Ebbole v. United States, 8 F.3d 530, 539 (7th Cir. 1993). Other- wise the court must apply the whole Guidelines manual in force at a given time; a judge may not choose one provision from the 1999 version, another from the 2001 version, and so on. U.S.S.G. sec. 1B1.11(b)(2).

3

If the Commission changes the Guidelines and makes the change retroactive, Perez will be entitled to seek that benefit. (Whether he would be entitled to a reduc- tion even under the language published for comment last year is a question we do not address.) As things stand, however, the sentence is entirely proper.

Affirmed

Notes:

*

The court subsquently decided to release this as an opinion.