United States v. Carlos Curry

NONPRECEDENTIAL DISPOSITION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 October 21, 2010*
Decided October 25, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 10‐1350
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 91 CR 463‐9
CARLOS CURRY,
Defendant‐Appellant. Ruben Castillo,
Judge.
ORDER
Carlos Curry is serving 30 years in prison for his role in a drug enterprise that
trafficked in heroin, powder cocaine, and crack. See 21 U.S.C. §§ 841(a)(1), 843, 846. On
direct appeal we affirmed his convictions and sentence. See United States v. Willis, 49 F.3d
1271 (7th Cir. 1995). For the second time Curry seeks a reduced sentence under 18 U.S.C. §
3582(c)(2). The district court denied a previous motion, and we affirmed that decision. This
time Curry invokes recent amendments that lowered the base offense levels for most drug
*
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)(C).
No. 10-1350 Page 2
crimes involving crack. The district court deemed the amendments inapplicable and denied
his motion. We affirm that ruling.
At Curry’s sentencing the district court found him responsible for distributing 30
kilograms of powder cocaine to wholesale customers. He was not involved with crack. His
total offense level of 39 and Category IV criminal history yielded an imprisonment range of
360 months to life. See U.S.S.G. § 2D1.1(c)(1) (1992).
Section 3582(c)(2) authorizes a district court to reduce a prison sentence that is based
on a guidelines range which has been lowered by a retroactive amendment. See U.S.S.G. §
1B1.10(a)(1); Dillon v. United States, 130 S.Ct. 2683, 2687 (2010); United States v. Poole, 550 F.3d
676, 678 (7th Cir. 2008). In 2007 the Sentencing Commission reduced the base offense levels
for most crack offenses and made the changes retroactive. See U.S.S.G. Supp. to App. C
amends. 706, 711, 713 (2008). The revisions were designed to lessen the differential between
offense levels for like amounts of powder and crack cocaine. See United States v. Woods, 581
F.3d 531, 533 (7th Cir. 2009). The changes did not lower the offense levels for powder
cocaine, but since some of his coconspirators also dealt in crack, Curry argues that he can
receive a reduction. That contention is erroneous; even if crack is involved, a defendant like
Curry whose guidelines range is based entirely on a different drug cannot benefit from the
changes to the offense levels for crack. See U.S.S.G. Supp. to App. C amends. 715, 716
(2008); United States v. White, 582 F.3d 787, 799 (7th Cir.), cert. denied, 130 S.Ct. 1542 (2010);
United States v. Johnson, 569 F.3d 619, 624-25 (6th Cir. 2009).
In his brief Curry presses other contentions that he included in his first motion under
§ 3582(c)(2) and then repeated in the second. Curry did not timely appeal the denial of his
first motion. That decision resolved Curry’s additional claims, and he is barred from
litigating them a second time. See United States v. Boyd, 591 F.3d 953, 956 (7th Cir. 2010);
United States v. Lykes, 73 F.3d 140, 142 (7th Cir. 1995).
AFFIRMED.