United States v. Omar Feliciano

NONPRECEDENTIAL DISPOSITION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 April 29, 2009∗
Decided May 8, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09-1008
Appeal from the United
UNITED STATES OF AMERICA, States District Court for the
Plaintiff-Appellee, Northern District of Illinois,
Eastern Division.
v.
No. 98 CR 923
OMAR FELICIANO, Blanche M. Manning, Judge.
Defendant-Appellant.
Order
Omar Feliciano is in prison following his conviction for conspiring to distribute
cocaine. 21 U.S.C. §846. After the Sentencing Commission reduced the guideline
applicable to crack-cocaine offenses, and made that change retroactive, see Amendment
706, Feliciano asked the district court to reduce his 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. 09-1008 Page 2
His range, recalculated under the amended guideline, is 292 to 365 months.
(Feliciano is accountable for 670 grams of crack and 7.8 kilograms of powder cocaine
and is in criminal history category III.) His original sentence was 360 months, but after a
remand following United States v. Booker, 543 U.S. 220 (2005), the sentence was reduced
to 180 months. The district judge declined to reduce it further under Amendment 706,
observing that 180 months is well below the bottom of the new range and concluding
that no further reduction is appropriate.
It is questionable whether any further reduction is permissible, given the
principle that a retroactive change does not authorize a judge to give a sentence lower
than the lower limit of the new range. See United States v. Cunningham, 554 F.3d 703 (7th
Cir. 2009). But whether or not a reduction is permissible, it is never mandatory.
Amendment 706 permits, but does not require, the reduction in a sentence for crack
cocaine. The district judge’s explanation of its decision—that Feliciano’s sentence is
already well below the applicable range—is rational and consistent with statute.
Feliciano’s argument that “Booker ... is a piece of judicial legislation that must be
foreclosed by the separation of powers doctrine” (which, to Feliciano, means that the
entire Sentencing Reform Act of 1984 is invalid) is frivolous, not only because a court of
appeals must follow decisions of the Supreme Court, but also because, but for Booker,
Feliciano’s sentence would be 360 months. All questions about timing to one side—
Feliciano’s supposition that a sentence is forever open to challenge and reduction is
incorrect—Feliciano was helped rather than injured by Booker.
AFFIRMED