United States v. Levence Simpson

2
1
NONPRECEDENTIAL DISPOSITION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 February 24, 2012*
Decided February 28, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
No. 11-3686 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Central District of Illinois.
Plaintiff-Appellee,
No. 1:01-cr-10038-JBM-JAG-4
v. Joe Billy McDade, Judge.
LEVENCE SIMPSON,
Defendant-Appellant.
Order
In 2008 LeVence Simpson asked the district court to reduce his sentence for
distributing crack cocaine, after the Sentencing Commission reduced the sentencing
ranges for that substance and made the change retroactive. The district court denied the
motion, because Simpson’s 240-month sentence is the statutory minimum, and the
change in the Guideline ranges therefore did not affect him. We affirmed, for the same
* This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 11-3686 Page 2
reason. United States v. Simpson, No. 08-2042 (7th Cir. Oct. 24, 2008) (nonprecedential
disposition). See also United States v. Forman, 553 F.3d 585 (7th Cir. 2009).
In 2010 the Sentencing Commission again reduced the ranges for crack-cocaine
offenses (Amendment 750), and these changes were made retroactive effective
November 1, 2011, by Amendment 759. Simpson filed another request for a sentence
reduction. The district court denied this motion, and Simpson has appealed.
His appellate brief ignores the reason he lost in 2008 and again in the district
court in 2011: His sentence is at the statutory minimum, so relief under 18 U.S.C.
§3582(c)(2) is impossible. The Sentencing Guidelines simply do not matter to his
sentence.
Simpson does contend that the 240-month sentence is invalid because it was not
based on a jury’s findings about the quantity of drugs that he distributed. The Supreme
Court rejected this line of argument in Harris v. United States, 536 U.S. 545 (2002),
holding that the Apprendi principle applies to maximum sentences but not minimum
sentences. Beyond that is the fact that §3582(c)(2) does not authorize a collateral attack
on the sentence. Its only function is to permit district judges to reduce a sentence when
the Sentencing Commission has made a retroactive change to the Guidelines, and this
change reduces the Guideline range for a particular prisoner. See Dillon v. United States,
130 S. Ct. 2683 (2010). The changes made by Amendments 750 and 759 do not affect
Simpson’s sentence, so the judgment of the district court is affirmed.