United States v. William Curtis

NONPRECEDENTIAL DISPOSITION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 December 7, 2009∗
Decided December 14, 2009
Before
FRANK H. EASTERBROOK , Chief Judge
JOHN L. C OFFEY, Circuit Judge
JOEL M. FLAUM , Circuit Judge
No. 09-3213 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Southern District of Illinois.
Plaintiff-Appellee,
No. 99 CR 40026-JPG
v. J. Phil Gilbert, Judge.
WILLIAM L. C URTIS,
Defendant-Appellant.
Order
William Curtis is serving a sentence of 327 months’ imprisonment for crack-
cocaine offenses. That is the upper limit of his original Guidelines range of 262 to 327
months. After the Sentencing Commission reduced the ranges for crack offenses, and
made those changes retroactive, Curtis asked the district judge to lower his sentence
under 18 U.S.C. §3582(c)(2). The district court concluded that Curtis is eligible for a
reduction and that his new range is 240 to 262 months. (The lower bound reflects a
statutory minimum sentence.)
∗ 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. 09-3213 Page 2
The judge concluded that Curtis is not an appropriate beneficiary of the changes.
The judge stated when sentencing Curtis that he would have ordered him to serve
more than 327 months had he been allowed to do so, indeed that his crime and
criminal history, combined with his reckless endangerment of officers and civilians
when trying to escape, justified a sentence of life imprisonment. But the statutory
maximum for his crime is 30 years, and until United States v. Booker, 543 U.S. 220(2005), judges were obliged to follow the Commission’s prescriptions. Considering all
developments since the Curtis’s sentencing, including Booker as well as the new
Guideline range, the judge stated that he now thinks that 327 months is the right
sentence.
Counsel has filed a motion to withdraw from the appeal and submitted a brief
that complies with Anders v. California, 386 U.S. 738 (1967). Curtis was invited to
respond, see Circuit Rule 51(b), and did so.
Counsel observes that §3582(c)(2) gives a judge discretion to reduce a sentence
but does not compel the judge to use that authority. See United States v. Young, 555
F.3d 611, 614 (7th Cir. 2009). Curtis responds that, by leaving his sentence in place, the
judge has disregarded the Sentencing Commission’s decision to reduce the ratio
between crack and powder cocaine. But the judge did not “disregard” that decision.
He found Curtis eligible for a reduction and recognized that the Commission favors
240 to 262 months. The judge well understood that a sentence of 327 months
substantially exceeds the Commission’s recommendation. The judge also explained
why he thinks 327 months appropriate for Curtis’s total conduct. The statute gives
discretion to the district judge rather than the court of appeals. We do not see any
non-frivolous argument that the sentencing judge’s discretion has been abused.
Curtis wanted the district court to recalculate his range by deleting a two-level
enhancement for obstruction of justice that had been one contributor to the original
sentence. Curtis maintains that his high-speed flight from police, which ended in a
crash, should not have been treated as obstruction. Section §3582(c)(2), however,
permits a district judge to implement retroactive changes adopted by the Sentencing
Commission; it does not require (or even permit) the district judge to start from
scratch and reopen issues that could have been raised on appeal following the original
sentencing. The Commission has not made any retroactive change to the Guidelines
that deal with obstructing justice. There is accordingly no appellate issue concerning
the district court’s conclusion that Curtis’s revised range is 240 to 262 months’
imprisonment.
Counsel’s motion to withdraw is granted, and the appeal is dismissed as
frivolous.