United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted November 1, 2021*

Decided November 5, 2021 

Before 

DIANE S. SYKES, Chief Judge 

FRANK H. EASTERBROOK, Circuit Judge 

DIANE P. WOOD, Circuit Judge

No. 21-1551 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

JACOBY WALKER, 

 Defendant-Appellant.

 Appeal from the United States District 

Court for the Northern District of 

Indiana, Hammond Division. 

No. 2:97 CR 88 

James T. Moody, 

Judge. 

O R D E R 

Jacoby Walker, a federal inmate convicted of drug and firearm crimes, twice 

asked the district court to reduce his life sentence: first under 18 U.S.C. § 3582(c)(2) and 

later under the First Step Act of 2018. The judge granted Walker’s motions in part, 

reducing his sentence to 60 years. Walker now argues that the judge should have 

*

 We have agreed to decide the case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 21-1551 Page 2 

lowered his sentence further. But because the 60-year sentence reflected an appropriate 

exercise of discretion, we affirm the judgment. 

Walker was convicted in 1998 for his leadership role in a large enterprise that 

distributed powder and crack cocaine around Gary, Indiana. He was found guilty on 

six counts: conspiring to distribute 5 kilograms or more of powder cocaine and 

50 grams or more of crack cocaine, 21 U.S.C. § 846; two counts of distributing 5 grams or 

more of crack cocaine, id. § 841(a)(1) (1998); employing a minor to distribute cocaine, id. 

§ 861(a)(1); and two counts related to carrying a semiautomatic pistol equipped with a 

silencer, 18 U.S.C. § 924(c)(1); 26 U.S.C. §§ 5861(d), 5871. 

At sentencing the judge held Walker responsible for higher drug quantities than 

charged in the indictment or found by the jury. Based on these quantities, the judge 

imposed a life sentence on the four drug counts; a concurrent 10-year sentence on one 

firearm count; and a mandatory, consecutive 30-year sentence on the second firearm 

count. 18 U.S.C. § 924(c)(1). We affirmed on direct appeal. United States v. Frazier, 

213 F.3d 409, 419 (7th Cir. 2000). 

Walker moved to vacate his sentence under 28 U.S.C. § 2255, arguing, as relevant 

here, that his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)—decided 

while his appeal was pending—because the jury did not determine the drug quantities 

used in sentencing. The judge, who had also presided over Walker’s criminal trial and 

sentencing, found that Walker procedurally defaulted the claim by not raising it on 

direct appeal and, regardless, he failed to show prejudice because the jury heard “an 

abundance of evidence” that “overwhelmingly demonstrate[d]” drug quantities far 

higher than those charged in the indictment. 

Later, Walker filed two motions to reduce his sentence. He moved first under 

§ 3582(c)(2) based on Amendment 782 to the Sentencing Guidelines, a retroactive 

amendment that reduces the base offense level of most drug offenders. While that 

motion was pending, he filed a second motion, this time under § 404 of the First Step 

Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, which makes retroactive the 

Fair Sentencing Act’s modified penalties for crack-cocaine offenses. He asked the judge 

to follow Apprendi and disregard the unindicted drug quantities. 

In a single order resolving both motions, the judge reduced Walker’s sentence on 

the drug convictions from life to 30 years, for a total of 60 years, including the 

consecutive sentence under § 924(c). First, the judge declined to reconsider his previous 
No. 21-1551 Page 3 

rejection of Walker’s Apprendi argument. Next, noting that Amendment 782 effectively 

lowered Walker’s Guidelines range to 360 months to life, the judge sentenced him to 

360 months. The judge acknowledged Walker’s educational achievements while 

incarcerated, good disciplinary record, and supportive family and friends, but he also 

emphasized the serious nature of Walker’s crimes (a leadership role in a dangerous 

drug conspiracy where he employed a minor to sell drugs and possessed a firearm 

silencer) and the need for deterrence. See 18 U.S.C. § 3553(a). Finally, the judge 

expressly recognized his discretion to impose a below-Guidelines sentence but declined 

to do so based on his assessment of the § 3553(a) factors. 

On appeal Walker maintains that Apprendi governs First Step Act proceedings, 

and so the judge erred by basing the sentence on drug quantities not found by the jury. 

But § 404 of the First Step Act does not require district judges to apply intervening 

judicial decisions like Apprendi. United States v. Fowowe, 1 F.4th 522, 532 (7th Cir. 2021). 

The judge reasonably explained that having already rejected Walker’s Apprendi 

argument on collateral review, he need not reconsider it. 

Next, Walker argues that the judge’s assessment of the § 3553(a) factors 

overlooked his commendable postsentencing conduct, § 3553(a)(1), and a sentencing 

disparity between him and a codefendant (who was resentenced to 27 years in prison 

under the First Step Act), § 3553(a)(6). Regarding the first point, the judge 

acknowledged Walker’s educational achievements and favorable disciplinary record in 

prison but appropriately weighed them against other sentencing factors, including the 

seriousness of Walker’s offense and the need for deterrence. On the second point, a 

disparity between codefendants’ sentences does not typically warrant reversal of a 

within-Guidelines sentence because by sentencing within the Guidelines, the judge has 

necessarily considered disparities. United States v. Castro-Aguirre, 983 F.3d 927, 944 

(7th Cir. 2020). Here, Walker and his codefendant both received new sentences at the 

bottom of their respective Guidelines ranges; the codefendant had a lower range 

because he pleaded guilty to a single drug count and faced no consecutive sentence 

under § 924(c). 

Finally, Walker argues that the judge incorrectly used a 1992 drug conviction to 

determine his criminal-history category. Prior sentences may be used in calculating the 

defendant’s criminal-history category, U.S.S.G. § 4A1.1 (“Add 3 points for each prior 

sentence of imprisonment exceeding one year and one month.”), but this provision 

excludes convictions for “relevant conduct” to the instant offense, id. § 4A1.2 cmt. n.1. 

The judge assessed three criminal-history points for the 1992 conviction, for which 
No. 21-1551 Page 4 

Walker served 16 months. Walker maintains—and the government agrees—that he 

should not have received these points because the 1992 conviction was treated as 

relevant conduct at Walker’s 1998 trial. In Walker’s view he had no other criminalhistory points, so the judge should have placed him in criminal-history category I for a 

Guidelines range of 324–405 months rather than 360 months to life. 

Although Walker is correct that his 1992 cocaine conviction should not have 

counted in the assessment of his criminal-history category, the error was harmless. Even 

without the three points in question, Walker still faced a Guidelines range of 

360 months to life. (In arguing for a lower range, Walker ignores two criminal-history 

points properly assessed for committing his latest offense while on probation. See id.

§ 4A1.1(d).) And the judge signaled that he would not have varied downward in any 

event, explaining that any sentence below 360 months would be inappropriate in light 

of the § 3553(a) factors. See United States v. Clark, 906 F.3d 667, 671 (7th Cir. 2018) 

(concluding that the miscalculated Guidelines range was harmless because the judge 

would have imposed the same sentence regardless). 

We have considered Walker’s other arguments, and they are meritless. 

AFFIRMED