In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-2901 & 08-2931

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEREK CUNNINGHAM AND

NORMAN THOMAS,

Defendant-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04-CR-8889—Milton I. Shadur, Judge.

ARGUED JANUARY 21, 2009—DECIDED FEBRUARY 4, 2009

Before POSNER, FLAUM, and WOOD, Circuit Judges.

FLAUM, Circuit Judge. This case presents the consolidated appeals of Derek Cunningham and Norman

Thomas. Their appeals arise from the same prosecution

and raise the same purely legal issue: whether a district

court, in reducing a defendant’s sentence pursuant to

18 U.S.C. § 3582(c)(2), has authority under United States

v. Booker, 543 U.S. 220 (2005) to reduce a defendant’s

sentence beyond the retroactive Guidelines amendment
2 Nos. 08-2901 & 08-2931

range. For the reasons explained below, we hold that a

district court does not have authority to do so and therefore affirm the judgment of the district court. 

I. Background

Because this appeal presents a purely legal question, the

facts of defendants’ convictions need not be explored

at length. Suffice to say, in the original prosecution,

co-defendants Thomas and Cunningham both pled guilty

to conspiring to distribute crack cocaine in violation of

21 U.S.C. § 846. On January 31, 2006, the district court

sentenced Thomas to 108 months in prison and

Cunningham to 87 months in prison. Both sentences were

at the low end of the advisory Sentencing Guidelines

range applicable to the respective defendants.

In June 2008, the defendants filed section 3582(c)(2)

motions to reduce their sentences based on the retroactive

amendments to the crack cocaine Guidelines. Based on

the change in the crack quantities and corresponding

offense levels, each of the defendants’ base offense

levels were reduced by two levels. The defendants thus

requested that their sentences be reduced two levels in

light of the amendment. However, they also asserted

that the district court had the authority to consider granting them further sentence reductions, resulting in terms

of imprisonment below their respective amended Guideline ranges. With regard to this second point, defendants

argued that the district court had authority to reduce

their sentences below the amended Guideline ranges

because Booker made the Sentencing Guidelines advisory.
Nos. 08-2901 & 08-2931 3

On July 17, 2008, the district court reduced the defendants’ sentences but declined to decrease their sentences

below the two level reduction authorized by the retroactive amendment. The district court held that Booker

was not implicated because “Booker concerns constitutional limitations on increasing a sentence beyond what is

considered the prescribed maximum without a jury

finding, not, as in this case, to [sic] decreasing a sentence.

Section 3582(c)(2) concerns only sentence reductions

and thus does not implicate Booker or the constitutional

limitations upon which that decision was premised.” 

Defendants have appealed.

II. Discussion

We review the district court’s determination of questions

of law de novo. United States v. Ryerson, 545 F.3d 483, 487

(7th Cir. 2008).

Title 18 U.S.C. § 3582(c)(2) provides that

[I]n the case of a defendant who has been sentenced to

a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing

Commission pursuant to 28 U.S.C. 944(o) . . . the

court may reduce the term of imprisonment, after

considering the factors set forth in § 3553(a) to the

extent they are applicable, if such a reduction is consistent with applicable policy statements issued by

the Sentencing Commission.

The policy statements relevant to this case are found

in Sentencing Guidelines sections 1B1.10(a)(3) and
4 Nos. 08-2901 & 08-2931

Section 1B1.10(b)(2)(B) provides an exception for defendants 1

who were originally sentenced to below-Guidelines terms

of imprisonment. For such defendants, “a reduction

comparably less than the amended guideline range . . . may be

appropriate.”

1B1.10(b)(2)(A). Section 1B1.10(a)(3) states that “proceedings under 18 U.S.C. § 3582(c)(2) and this policy

statement do not constitute a full resentencing of the

defendant.” Section 1B1.10(b)(2)(A) provides that “the

court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the

amended guideline range determined under subdivision (1) of this subsection.”1

The basic question in this case is whether these policy

statements regarding section 3582(c)(2) resentencings—

first, that section 3582(c)(2) reductions do not constitute

full resentencings, and second, that a court shall nor

reduce a defendant’s imprisonment to less than the

minimum of the amended guideline range—conflict with

Booker’s general rule that the Sentencing Guidelines are

advisory. That is, whether or not district courts have

the authority, in making section 3582(c)(2) sentence

modifications, to treat the amended Guideline range as

advisory despite the Commission’s policy statements to

the contrary.

Defendants advance four arguments to support their

contention that a district court can reduce a defendant’s

sentence beyond the retroactive Guidelines amendment

range. First, they argue that Booker expressly rejected
Nos. 08-2901 & 08-2931 5

the notion that the Guidelines are advisory in some

contexts but mandatory in others. In other words, they

disagree that the Guidelines could be advisory during

a defendant’s initial sentencing but mandatory in section 3582(c)(2) proceedings. Second, and to some degree

in the alternative, they argue that the Commission’s

policy statements themselves are advisory and thus are

not truly inconsistent with a below-guidelines sentence.

Third, they claim that if the Commission’s policy statements were given full effect, they would strip courts

of their traditional sentencing discretion by constraining

their consideration of the section 3553(a) factors to the extent they are applicable—consideration that is mandated

under the terms of section 3582(c)(2). Finally, they argue

that since the Supreme Court has held that district courts

have discretion to depart from the Guidelines even

based on disagreements with the Guideline’s policy

statements, see, e.g., Spears v. United States, __ U.S. __, __

S.Ct. __, 2009 WL 129044 *2 (Jan. 21, 2009), the enactment

of the Guideline amendment and its policy statements

cannot strip the sentencing courts of their discretion by

mandating the strict application of a two level departure.

The Ninth Circuit adopted many of the defendants’

views in United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007).

In Hicks, the Ninth Circuit concluded that limiting the

extent of a section 3582(c)(2) reduction to that prescribed

by the Sentencing Commission amounts to a mandatory

application of the Sentencing Guidelines that is prohibited

by Booker. While the court conceded that Booker itself

does not create the authority for reopening sentencing

under section 3582(c)(2), the court reasoned that once
6 Nos. 08-2901 & 08-2931

such proceedings were initiated, the district court has

discretion to impose a non-Guidelines sentence. Id. at

1171 (“Because a ‘mandatory system is no longer an

open choice,’ district courts are necessarily endowed

with the discretion to depart from the Guidelines when

issuing new sentences under § 3582(c)(2).”) (quoting Booker,

543 U.S. at 263). The Ninth Circuit also rejected the government’s argument that because a § 3582(c)(2) proceeding is not a “full resentencing,” but merely a modification of the defendant’s sentence, Booker was inapplicable.

See id. at 1167 (“The dichotomy drawn by the government,

where full re-sentencings are performed under an

advisory system while ‘reduction proceeding’ or ‘modifications’ rely on a mandatory Guideline system, is false. . . .

Mandatory Guidelines no longer exist, in this context or

in any other.”).

The government urges us to decline to follow Hicks.

They present three main arguments in support of affirming

the district court. First, they note that 28 U.S.C. § 944(u)

gives the Sentencing Commission the exclusive power

to decide under “what circumstances and by what

amounts the sentences of prisoners . . . may be reduced.”

See 28 U.S.C. § 944(u); see also Braxton v. United States, 500

U.S. 344, 348 (1991) (emphasis omitted) (Congress has

given the Sentencing Commission “the unusual and

explicit power to decide whether and to what extent

its amendments . . . will be given retroactive effect.”)

(emphasis omitted) (citing 28 U.S.C. § 944(u)). Thus, they

reason, the Commission’s policy statements that implement the Commission’s authorization of retroactive

sentence reductions are binding because they are an
Nos. 08-2901 & 08-2931 7

exercise of that statutory authority. Second, they focus

on the Commission’s policy statement in U.S.S.G.

§ 1B1.10(a)(3) which states that under section 3582(c)(2),

defendants do not receive “a full resentencing.” They cite

several pre-Booker cases holding, as the Eleventh Circuit did, for example, that section 3582(c)(2) “do[es] not

contemplate a full de novo resentencing” and “all original

sentencing determinations remain unchanged with the

sole exception of the guideline range that has been

amended since the original sentencing.” United States v.

Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis in

original) (internal quotation and citation omitted). Finally,

the government argues that Booker does not apply to

section 3582(c)(2) proceedings because Booker does not

apply to sentence reductions.

Several recent circuit court decisions support the government’s position. See United States v. Rhodes, 549 F.3d

833 (10th Cir. 2008); United States v. Dunphy, ___ F.3d ___,

2009 WL 19139 (4th Cir. Jan. 5, 2009); United States v.

Starks, ___ F.3d ___, 2009 WL 66115 (8th Cir. Jan. 13, 2009).

A number of district courts from around the country

have also come to this conclusion. See United States v.

Speights, 561 F. Supp. 2d 1277, 1281 (S.D. Ala. 2008) (citing

eleven other district court decisions from around the

country that have held that Booker has no impact on

section 3582(c)(2) reductions).

In our analysis, the best place to start is Booker itself. In

Booker’s substantive opinion, the Supreme Court held

that the federal sentencing system as it then existed,

under which the sentencing court rather than the jury
8 Nos. 08-2901 & 08-2931

found facts that established the mandatory guideline

range, violated the Sixth Amendment as construed in

Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v.

Washington, 542 U.S. 296 (2004). The constitutional

problem that Booker addressed was that “any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Booker, 543 U.S. at

231 (quoting Apprendi, 530 U.S. at 490). The Court found

that a sentencing system in which such judicial factfinding was mandatory violated the Sixth Amendment. 

However, as the district court recognized, in section

3582(c)(2) proceedings, a district court can only decrease a

defendant’s sentence. Thus, the constitutional defect

addressed by Booker is simply not implicated. Moreover,

a section 3582(c)(2) modification is discretionary, even

for a defendant whose Guideline range has been retroactively lowered. See 18 U.S.C. § 3582(c)(2) (identifying

circumstances in which “the court may reduce the term

of imprisonment”) (emphasis added). Thus, to frame a

section 3582(c)(2) reduction as a mandatory undertaking

that triggers the Sixth Amendment or Booker is incorrect.

It is admittedly a bit harder to reconcile the language

of Booker’s remedial opinion, however. In its remedial

portion, Booker eliminated the constitutional defect identified above by severing and excising the provisions of the

Guidelines that made them mandatory, along with any

statutory provisions that depended upon the Guidelines’ mandatory nature. Booker, 543 U.S. at 245-46. The

remedial majority determined that this was what
Nos. 08-2901 & 08-2931 9

As an initial matter, it bears noting that because section 2

3582(c)(2) did not cross-reference any provisions excised by

Booker, and because Booker did not directly address section

3582(c)(2) proceedings, section 3582(c)(2) remained intact.

Congress would have intended in light of the court’s

constitutional holding. Id. at 246. The Court went on to

state that it did “not see how it was possible” to leave the

Guidelines as binding in some cases but not in others. Id.

at 266. The Court explicitly rejected the government’s

proposal, which would have “impose[d] mandatory

Guidelines-type limits upon a judge’s ability to reduce

sentences, but it would not impose those limits upon a

judge’s ability to increase sentences.” Id. As the Court

stated, “[w]e do not believe that such ‘one way lever[s]’ are

compatible with Congress’ intent.”

Despite this broad language, we do not believe that

the Booker remedy renders the limits set by the Sentencing Commission for section 3582(c)(2) proceedings

advisory. First, unlike a full sentencing or resentencing, 2

Congress clearly intended section 3582(c)(2) proceedings

to be a one way lever. Section 3582(c)(2) allows the

district court to leave a sentence alone or reduce it, but

it does not permit the district court to increase a sentence.

Second, and more generally, while Booker’s remedial

opinion stated that “we believe that Congress would not

have authorized a mandatory system in some cases and a

nonmandatory system in others” due to the possible

“administrative complexities” of such a system, it seems

to us that allowing (or requiring) district courts to essen-
10 Nos. 08-2901 & 08-2931

This is a point we (and other courts) feel the Hicks court 3

failed to appreciate. See Rhodes, 549 F.3d at 840-41; Starks, 2009

WL 66115 at *3.

tially conduct a full resentencing upon a section 3582(c)(2)

motion would create more administrative complexity, not

less. See Dunphy, 2009 WL 19139 at *5. Finally, Booker’s

remedial opinion focused on Congressional intent. The

text of section 3582(c)(2) makes clear that Congress intended section 3582(c)(2) modifications to comport with

the Commission’s policy statements, an impossibility if

we were to adopt the defendants’ position that Booker

rendered the Guidelines wholly advisory in the context

of sentence modifications (as distinguished from full

sentencing proceedings). 

This last point bears elaboration, as it is the most important basis for our decision today. Original sentencing

proceedings and sentence modification proceedings are

legally distinct from one another. Original proceedings

are governed by 18 U.S.C. § 3553 (a statute that was

partially excised in Booker), while sentence modification

proceedings are governed by 18 U.S.C. § 3582(c)(2).3

Contrary to the defendants’ contention, there is no “inherent authority” for a district court to modify a sentence as

it pleases; indeed a district court’s discretion to modify

a sentence is an exception to the statute’s general rule

that “the court may not modify a term of imprisonment

once it has been imposed.” See 18 U.S.C. § 3582(c). When

Congress granted district courts discretion to modify

sentences in section 3582(c)(2), it explicitly incorporated
Nos. 08-2901 & 08-2931 11

the Sentencing Commission’s policy statements limiting

reductions. See United States v. Walsh, 26 F.3d 75, 77 (8th

Cir. 1994) (“Congress has made the policy statements

set forth in Section 1B1.10 the applicable law for determining whether a district court has the authority to

reduce a sentence in this situation.”). Thus, the Commission’s policy statements should for all intents and

purposes be viewed as part of the statute. The policy

statements make clear that section 3582(c)(2) proceedings

are not full resentencings and may not result in a sentence

lower than the amended guideline range (unless the

defendant’s original sentence was lower than the guideline range). See U.S.S.G. §§ 1B1.10(a)(3), 1B1.10(b)(2)(A)

This limitation of the district court’s power is not constitutionally suspect. Having chosen to create a modification mechanism, Booker does not require Congress to

grant the district courts unfettered discretion in

applying it. Indeed, mandatory minimum sentences—

which cabin the district courts’ discretion with regard to

section 3553(a) factors—have been upheld as constitutional. See Harris v. United States, 536 U.S. 545, 565-68

(2002); United States v. Franklin, 547 F.3d 726, 735 (7th

Cir. 2008) (rejecting defendant’s argument that the

district court had authority to depart from the mandatory

minimum and consider the factors set forth in 18 U.S.C.

§ 3553 to impose a lesser sentence) (citing Chapman v.

United States, 500 U.S. 453 (1991)).

Section 3582(c)(2)’s direction that courts “shall consider

the factors in Section 3553(a) to the extent they are applicable” does not undermine our conclusion. It is true

that one of the factors in section 3553(a) is the Guidelines
12 Nos. 08-2901 & 08-2931

range, which Booker made advisory. However, section

3582(c)(2) states that a district court considers the

section 3553(a) factors in making a reduction “consistent

with the applicable policy statements issued by the Sentencing Commission.” There need not be a conflict: the

statute can be viewed as requiring district courts to

consider the section 3553(a) factors in deciding whether

and to what extent to grant a sentence reduction, but only

within the limits of the applicable policy statements. See

Dunphy, 2009 WL 19139 at *7. (In this case, the limit is the

bottom of the amended Guideline range, as stated in

U.S.S.G. § 1B1.10.)

In concluding that district courts do not have authority

to grant sentence reductions pursuant to section 3582(c)(2)

below the amended Guideline range, we are mindful

of two final points. As the government points out, Booker

has not been made a basis for post-conviction collateral

review under 28 U.S.C. § 2255. It would thus be incongruous if courts interpreted section 3582(c)(2), which provides for more limited relief than section 2255, as triggering a full Booker resentencing. On a related note,

Booker does not apply to the scores of defendants whose

sentences were final when Booker was handed down. It

would be unfair to allow a full Booker resentencing to

only a subset of defendants whose sentences were

lowered by a retroactive amendment.

III. Conclusion

We side with the majority of courts and hold that district

courts, in reducing a defendant’s sentence pursuant to
Nos. 08-2901 & 08-2931 13

18 U.S.C. § 3582(c)(2), do not have authority to reduce

the defendant’s sentence beyond the retroactive Guidelines amendment range. We thus AFFIRM the judgment of

the district court.

2-4-09