# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 29, 2009

Decided June 11, 2009

Before

WILLIAM J. BAUER, Circuit Judge

RICHARD D. CUDAHY, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 09

‐ 1121

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

MONTIE L. RUSSELL,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of Illinois,

Western Division.

No. 93 CR 20024

‐ 05

Philip G. Reinhard,

Judge

.

O R D E R

In the early 1990s, Montie Russell was a ringleader of what we have previously

described as an “extensive and relatively well

‐ organized conspiracy to sell crack cocaine in

Rockford, Illinois.” United States v. Russell

, 96 F.3d 1450 (7th Cir. 1996) (Table) (slip op. at 1).

In 1994, Russell was convicted of conspiracy to distribute crack cocaine, among other

offenses. We upheld Russell’s conviction on direct appeal. Our previous decision describes

the nature of the drug trafficking conspiracy and Russell’s involvement therein, so we will

not recount these details again here.

Over ten years after Russell’s conviction became final, the United States Sentencing

Commission issued an amendment to the Sentencing Guidelines, which generally reduced

the base offense levels applicable to crack offenses. U.S.S.G. app. C., Amend. 706.

Previously, offenses involving 1.5 kilograms or more of crack cocaine would be assigned a 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 1121 Page 2

1 Indeed, in addition to finding that Russell had sold 5.5 kilograms of crack cocaine

in 1992, the court also found that he had sold 9 kilograms of an unspecified type of cocaine

in 1993. While the court did not state with precision how much of this 9 kilograms was

crack and how much powder, it estimated that 80 percent of sales by weight was crack. base offense level of 38, the highest possible base offense level. Under the amended

Guidelines, only offenses involving 4.5 kilograms or more of crack would be assigned a base

level of 38.

In March 3, 2008, Amendment 706 was made retroactive. That same day, Russell

filed a pro se motion for a sentence reduction under the amended Guidelines pursuant to 18

U.S.C. § 3582(c). The district court denied Russell’s motion, finding that he was not eligible

for a sentence reduction because his total offense level remained the same under the

amended Guidelines. Our review is de novo

. See United States v. Ryerson

, 545 F.3d 483, 487

(7th Cir. 2008).

As a general matter, a sentencing court “may not modify a term of imprisonment

once it has been imposed.” 18 U.S.C. § 3582(c); see also United States v. Goode

, 342 F.3d 741,

743 (7th Cir. 2003) (holding that this limitation is jurisdictional). Section 3582(c)(2) creates a

limited exception to this rule, giving sentencing courts the discretion to reduce the term of

imprisonment where a defendant “has been sentenced to a term of imprisonment based on

a sentencing range that has subsequently been lowered.” However, both the Guidelines

themselves and our cases make it clear that this exception applies if and only if a defendant’s

Guidelines range has been lowered. See U.S.S.G. § 1B1.10(a)(2)(B) (“A reduction in the

defendant’s term of imprisonment

... is not authorized

... if

... [a]n amendment

... does not

have the effect of lowering the defendant’s applicable guideline range.”). Thus, a sentencing

court lacks the power to reduce the defendant’s sentence under Section 3582(c)(2) when an

amendment does not lower a defendant’s sentencing range. United States v. Forman

, 553 F.3d

585, 590 (7th Cir. 2009) (per curiam)

. Such was the case here. During Russell’s initial sentencing hearing, the district court

found that Russell was responsible for the sale of at least 5.5 kilograms of crack cocaine. 1

Thus, Russell cannot benefit from Amendment 706 because that amendment affects only

defendants who are responsible for distributing fewer than 4.5 kilograms of crack cocaine.

Forman

, 553 F.3d at 590.

A note regarding jurisdiction. We have recently held that the language limiting the

scope of Section 3582(c)(2) to defendants who were sentenced pursuant to a range that “has

subsequently been lowered,” is jurisdictional. See United States v. Lawrence

, 535 F.3d 631, 638

(7th Cir. 2008); see also United States v. Poole

, 550 F.3d 676, 678 (7th Cir. 2008). Strictly

speaking, therefore, the appropriate resolution of this case is the dismissal of the proceeding

rather than the denial of the motion. Construing the district court’s order as a dismissal for

lack of jurisdiction, we AFFIRM.