United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 4, 2011∗

Decided March 10, 2011

Before

FRANK H. EASTERBROOK, Chief Judge

KENNETH F. RIPPLE, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 09-2856

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PORTER B. TAPPS,

Defendant-Appellant.

Appeal from the United 

States District Court for the 

Southern District of Indiana, 

Indianapolis Division.

No. 1:93-cr-00148-LJM-10

Larry J. McKinney, Judge.

Order

Porter Tapps applied for a lower sentence when the Sentencing Commission 

reduced the Guideline range for crack cocaine and made that change retroactive. See 18 

U.S.C. §3582(c)(2). The district court cut his sentence from 450 to 365 months but did not 

explain why it chose the high end of the new range (292 to 365 months). Our order of 

March 29, 2010, directed the district judge to explain.

 

∗ 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).

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NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1

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No. 09-2856 Page 2

The court explained that: “A further reduction in Tapps’ sentence, even though 

within the new sentencing range, is not appropriate because of the nature and 

seriousness of the danger to the community that would be posed by a further reduction 

in sentence. See Application Note 1(B) of U.S.S.G. § 1B1.10.” Tapps now asks us to 

vacate and remand for a full resentencing. His lawyer observes that the district court 

did not discuss his argument that, during his 13 years in prison he has had a good 

record and has obtained a high school degree by distance learning (a GED). If counsel’s 

request had been filed just a little later, he might have cited the Supreme Court’s 

decision that, when resentencing a felon after an appellate remand, a district judge is 

entitled to consider rehabilitation during incarceration. Pepper v. United States, No. 09–

6822 (U.S. Mar. 2, 2011).

Pepper applies to resentencing, and Tapps asks us to treat a decision under 

§3582(c)(2) as a form of resentencing, at which the district judge must discuss every 

substantial argument advanced by the defendant. But last year the Supreme Court 

stated emphatically that a sentence-reduction proceeding under §3582(c)(2) is not a form 

of resentencing. Dillon v. United States, 130 S. Ct. 2683, 2690–92 (2010). It is instead a 

summary procedure designed to implement a change in the Sentencing Guidelines. The 

only change relevant to Tapps is a reduction in the range for crack-cocaine offenses. The 

district court implemented that change by slicing 85 months off his sentence and has 

now explained why it did not choose a different place in the new range. Neither the 

amended Guideline nor §3582(c)(2), as understood in Dillon, requires a district judge to 

give effect to other things that may have occurred after the original sentencing. This 

does not mean that a district judge is forbidden to consider rehabilitation when choosing 

a sentence within the reduced range. But neither is consideration of rehabilitation 

obligatory.

The reduced sentence falls within the amended range, and the district court’s 

decision is not an abuse of discretion. It is affirmed.