United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 5, 2010∗

Decided April 13, 2010

Before

FRANK H. EASTERBROOK, Chief Judge

RICHARD D. CUDAHY, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 09-2934

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARRELL BRANCH,

Defendant-Appellant.

Appeal from the United 

States District Court for the 

Northern District of Illinois, 

Eastern Division.

No. 95 CR 508-8

Harry D. Leinenweber, Judge.

Order

Darrell Branch is serving a term of imprisonment for his involvement in the 

Gangster Disciples, a large scale drug-distribution organization. We affirmed his 

conviction in 2001, see 246 F.3d 1054 (7th Cir. 2001), but remanded for resentencing. 

Branch did not appeal from the 292-month sentence imposed in 2002 after our remand.

In 2008 Branch asked the judge to reduce his sentence in light of the Sentencing 

Commission’s decision to reduce, with retroactive effect, the Guideline ranges for crack-

 

∗ 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).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 09-2934 Page 2

cocaine offenses. See 18 U.S.C. §3782(c)(2). The district court concluded, however, that 

Branch is ineligible. The statute authorizes a judge to reduce the sentence only if the 

retroactive change in the Guidelines reduced the Commission’s recommended range. 

See generally United States v. Cunningham, 554 F.3d 703 (7th Cir. 2009); United States v. 

Hall, 582 F.3d 816 (7th Cir. 2009). The district court found when sentencing Branch 

initially, and again on remand, that his offense is level 38, because his relevant conduct 

exceeded 150 kilograms of powder cocaine and 1.5 kilograms of crack. After the 

amendments to the Guidelines, it takes 4.5 kilograms of crack to support level 38; 1.5 

kilograms leads to level 36. But the district judge concluded that, even under the revised 

Guidelines, Branch’s relevant conduct still produces a level 38 sentence. First, the judge 

observed that 150 kilograms of powder cocaine by itself leads to a level 38 classification. 

The amendments did not change the treatment of powder cocaine. Second, the judge 

stated that Branch is responsible for much more than 4.5 kilograms of crack cocaine. 

The only reason the figure 1.5 kilograms had been used earlier is that, until the recent 

amendments, 1.5 kilograms of crack put a drug offender in the highest possible 

classification. Finally, the judge added, he would not reduce the sentence even if Branch 

were eligible, given the severity of his criminal conduct.

Branch contends on this appeal that he is entitled to a new hearing, and a fresh 

opportunity to present evidence, before the judge raises his relevant conduct from 1.5 

kilograms to 4.5 kilograms of crack. He also contends that the record does not support 

the higher finding. But neither of these arguments addresses the fact that Branch’s

relevant conduct includes at least 150 kilograms of powder cocaine. The district judge 

did not find Branch culpable for 150 kilograms of powder or 1.5 kilograms of crack; the 

judge found that his relevant conduct included at least 150 kilograms of powder and 1.5 

kilograms of crack. This means that his sentencing level is 38 without regard to the 

amount of crack for which he is responsible. The Sentencing Commission’s decision to 

increase the quantity of crack needed to place a person in level 38 thus had no effect on 

Branch’s sentencing range, and because the retroactive change did not affect his range 

he is ineligible under §3782(c)(2), just as the district court concluded. See United States v. 

Lawrence, 535 F.3d 631, 637–38 (7th Cir. 2008).

To the extent that Branch is contesting the calculation of his relevant conduct at 

his original sentencing, that subject is outside the scope of §3782(c)(2). The statute does 

not allow belated revival of an issue that could have been presented on the initial appeal 

(or, here, on an appeal from the 2002 resentencing). Eligibility for a reduction depends 

on how the retroactive amendment applies to Guidelines calculations already made.

Because Branch is ineligible for any reduction, the issue before the Supreme 

Court in Dillon v. United States, No. 09-6338 (argued Mar. 30, 2010), does not affect this 

appeal.

AFFIRMED