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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) No. 02 CR 200-6

)

ANDRE SEYMOUR, ) Judge Rebecca R. Pallmeyer

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Defendant Andre Seymour is serving a 292-month sentence after being convicted at trial 

in December 2003 for conspiracy to possess with intent to distribute 50 grams or more of cocaine 

base. See 21 U.S.C. § 841(b)(1)(A). He was also convicted of using a communication facility to 

commit a felony for which he was sentenced to a concurrent four-year term. Mr. Seymour has 

now filed a motion [1895] for a reduced sentence under the First Step Act, Pub. L. No. 115-391, 

§ 404, 132 Stat. 5194, 5122 (2018), which makes retroactive the changes to the drug amounts 

that trigger mandatory minimum sentences provided in the Fair Sentencing Act of 2010, Pub. L. 

111-220, 124 Stat. 2372, 2372 (2010). The government opposes this motion. The government 

contends that Mr. Seymour is not eligible for a sentence reduction under the First Step Act and, 

in the alternative, that the court should exercise its discretion under the Act and deny relief. As

explained below, the court concludes that Mr. Seymour is eligible for relief and reduces his 

sentence to a term of time served.

BACKGROUND

In July 2002, Andre Seymour and twenty-five co-defendants were charged with various 

drug crimes arising from a crack cocaine distribution conspiracy. (Indictment [172] at 1–8.) Mr. 

Seymour was named in three counts: Count I charged Seymour and his co-defendants with 

conspiracy to possess with intent to distribute 50 grams or more of cocaine and cocaine base. 

(Id. at 3.) Count IX charged Mr. Seymour with distributing 18.8 grams of cocaine base within 1000 

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feet of a school. (Id. at 16.) And Count XV charged him with use of a communication facility to 

commit a felony. (Id. at 22.) On December 18, 2003, a jury found Mr. Seymour guilty on Counts I 

and XV. (See Dec. 18, 2003 Min. Order [668].)

At his September 2005 sentencing hearing, then-Judge Wayne Andersen found Mr. 

Seymour’s base offense level to be 38, based on the probation officer’s report that he was 

responsible for distributing 1.5 kilograms or more of crack. (Gov’t’s Resp. to Def.’s Mot. [1901] at 

3.). Judge Andersen applied a two-level enhancement because the conspiracy sold 1.5 kilograms 

of crack cocaine within 1000 feet of a school and another two-level increase because of the 

foreseeable presence of firearms in the crack distribution. (Id.) Judge Andersen declined to apply 

a three-level enhancement for Mr. Seymour’s status as a “shift supervisor” in the conspiracy, 

reasoning that it was not a managerial or leadership role. (Sentencing Tr., Ex. 1 to Def.’s Mot., 

[1895] at 35:5–10.) The court calculated Mr. Seymour’s total offense level to be 42. (Gov’t’s 

Resp. to Def.’s Mot. [1901] at 4.) Judge Andersen also determined that Mr. Seymour had a 

Criminal History Category of III, though the court characterized it as “sort of a light-three” due to 

the nonviolent nature of his prior offenses. (Sentencing Tr. at 37:6.) Under the sentencing 

guidelines at that time, a total offense level of 42 with a Criminal History Category of III suggested 

a sentence between 360 months and life. (Def.’s Mot. [1895] ¶ 3.) For reasons of “proportionality 

with the other defendants and the statutory parameters,” Judge Andersen imposed a sentence of 

324 months for Count I, a downward departure of 36 months from the bottom of the guideline 

range. (Sentencing Tr. at 40:9–12.) Mr. Seymour was also sentenced to a concurrent four-year 

term for Count XV. (Id. at 42:18–19.)

Mr. Seymour and five co-defendants challenged their sentences on appeal, arguing that 

the district court had violated the holding of Apprendi v. New Jersey, 530 U.S. 466, 499 (2000), 

by failing to have a jury make defendant-specific drug quantity findings. See United States v. 

Seymour, 519 F.3d 700, 709 (7th Cir. 2008). The Seventh Circuit rejected the argument, noting 

that “[t]he district court judge's determinations regarding the drug quantity attributable to each 

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defendant did not increase the penalty for the crime beyond the statutory maximum” and therefore 

did not violate Apprendi. Id. at 710. The court also upheld the district court’s finding that 1.5 

kilograms of crack cocaine could be attributed to each defendant. Id. at 710–13.

Since the time his sentence was affirmed, Mr. Seymour has filed three motions for a 

sentence reduction. (Def.’s Mot [1895] ¶ 4.) In November 2008, he moved for a reduced 

sentence [1283] pursuant to 18 U.S.C. § 3782(c) and Guideline Amendment 704, which raised 

the quantity thresholds applicable to the Guideline’s crack cocaine base offense levels. (Gov’t’s 

Resp. to Def.’s Mot. [1901] at 4–5.) Judge Andersen denied that motion; he concluded that 

Amendment 704 did not lower the guideline range for Mr. Seymour’s offense because there was 

evidence in the record that Mr. Seymour was responsible for 4.5 kilograms of crack cocaine, 

meaning that there was evidence to uphold Mr. Seymour’s original base offense level. (Id. at 5.)

Following Judge Andersen’s retirement, the case was reassigned to this court. In 

December 6, 2011, Mr. Seymour filed his second motion [1551] for a sentence reduction, this time 

invoking Amendment 750, which further raised the drug quantity thresholds for base offense 

levels for crack cocaine offenses. Citing evidence considered by Judge Andersen and addressed 

by the Seventh Circuit, see Seymour, 519 F.3d at 712, this court denied the motion, reasoning 

that the amount of crack for which Seymour should be held responsible, 8.4 kilograms, meant 

that the same guideline remained appropriate. (Mar. 5, 2013 Min. Order [1637].)

Mr. Seymour filed his third motion [1800] for a sentence reduction pro se on October 5, 

2015, citing Guideline Amendment 782, which further raised the drug quantity thresholds for base 

offense levels. He argued that because Judge Andersen found him responsible only for 1.5 

kilograms of crack at sentencing, Seymour is entitled to a reduction. (Def.’s Reply in Supp. of 

Mot. under Am. 782 [1825] at 2.) The government objected, pointing to facts in the record that 

supported the conclusion that Seymour was in fact responsible for distributing 25.2 kilograms, far 

more than the 1.5 kilograms that Judge Andersen referred to at sentencing. (Gov’t’s Resp. to 

Def’s Mot. under Am. 782 [1813] at 9.) This time, the court granted the motion, stating: 

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[T]his court has been reluctant to make findings that depart significantly from those 

made by the original sentencing judge, even where such findings appear amply 

supported by the evidence. In 2007 and 2008, when greater specificity about 

amounts made no difference to the ultimate sentence, defendant and defense 

counsel would have had no real incentive to litigate the issue, or challenge the 

government's assertions. To make new findings now, without a hearing, could 

present due process concerns. The court thus concludes that the appropriate 

course in most circumstances is to adopt the findings made by the judge who heard 

the evidence—in this case, Judge Andersen, who ultimately tagged Mr. Seymour 

for 4.5 kilograms, but not as much as 8.2. 

(Aug. 18, 2016 Order [1837] at 2.) Considering this quantity in light of Amendment 782, Mr. 

Seymour’s new base offense level was 34, and with enhancements, the adjusted offense level is 

38. (Id. at 3.) Along with a criminal history category of III, Mr. Seymour’s new guideline range 

was 292 to 365 months. (Id.) Noting Mr. Seymour’s achievements—earning a GED, taking 

numerous courses, outstanding work evaluations, and zero discipline in fourteen years in 

custody—the court reduced his sentence to the bottom of the range, 292 months. (Id.) Including 

good time credits, Mr. Seymour’s projected release date is now April 8, 2023, according to 

BOP.gov.

On June 28, 2019, Mr. Seymour filed this motion [1895] for a reduced sentence under 

section 404 of the First Step Act of 2018, Pub. Law No. 115-391, 132 Stat. 5194, 5122 (2018). 

The First Step Act made retroactive the Fair Sentencing Act of 2010’s changes to the drug 

amounts that trigger mandatory minimum sentences. When Mr. Seymour was sentenced, the 

guidelines range for the distribution of 50 grams or more of cocaine base was ten years to life 

imprisonment, and the range for distributing 5 to 50 grams was five to forty years imprisonment. 

See 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii) (2002 Supp.) A defendant sentenced for amounts of 28 

to 280 grams after the Fair Sentencing Act was enacted would face a range of five to forty years. 

See 21 U.S.C. § 841(b)(1)(B)(iii). These less stringent penalties initially applied only to 

defendants sentenced after the 2010 Act’s enactment. See Dorsey v. United States, 567 U.S. 

260, 281 (2012) (“[W]e conclude that Congress intended the Fair Sentencing Act's new, lower 

mandatory minimums to apply to the post-Act sentencing of pre-Act offenders.”). But the 2018 

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First Step Act made retroactive the Fair Sentencing Act’s increase in the quantity of crack 

necessary to trigger § 841’s penalties. See Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 

(2018). Mr. Seymour accordingly moves for a sentence reduction.

DISCUSSION

Mr. Seymour asks that the court exercise its powers under the First Step Act and 

resentence him to a term of time served. The government contends that Seymour is not eligible 

for relief under the Act and that, even if he is eligible, the court should still exercise its discretion 

to deny his motion. As explained below, the court finds that Mr. Seymour is eligible for a sentence 

reduction and chooses to exercise its discretion to reduce his sentence to a term of time served.

A. Eligibility

The First Step Act provides, “A court that imposed a sentence for a covered offense may, 

on motion of the defendant, . . . impose a reduced sentence as if sections 2 and 3 of the Fair 

Sentencing Act of 2010 were in effect at the time the covered offense was committed.” First Step 

Act § 404(b) (citation omitted). Section 2 of the Fair Sentencing Act modified the amounts of 

crack cocaine necessary to trigger certain mandatory minimum sentences, while section 3 

eliminated mandatory minimums for simple crack cocaine possession. Pub. L. No. 111-220, § 2–

3, 124 Stat. 2372, 2372 (2010). “Covered offense” in the First Step Act is defined to mean “a 

violation of a Federal criminal statute, the statutory penalties for which were modified by section 

2 or 3 of the Fair Sentencing Act of 2010.” First Step Act § 404(a). The government contends 

that Mr. Seymour was not sentenced for a “covered offense” and that he is therefore ineligible for 

relief. The court disagrees.

As already noted, at the time of Mr. Seymour’s indictment and resulting conviction, the 

offense of possession with intent to distribute 50 grams or more of crack cocaine carried a tenyear to life sentence. 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii) (2002 Supp.). Because the Fair 

Sentencing Act modified the statutory penalties in § 841(b)(1), along with the amounts the 

government must prove to meet each statutory penalty, Mr. Seymour contends that he is eligible 

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for relief under the First Step Act. (Def.’s Mot. [1895] ¶ 9.) In other words, because the statutory 

penalties for the statute the government charged him with violating have changed, he is eligible 

for a reduced sentence. (Def.’s Reply [1905] at 2–3.)

The government’s position, on the other hand, is that a defendant is eligible for a reduced 

sentence only if the Fair Sentencing Act changed the penalties associated with the quantities of 

crack cocaine that the defendant actually distributed. (Gov’t’s Resp. to Def.’s Mot. [1901] at 7, 9–

11.) On this view, eligibility for First Step Act relief does not turn on the amount charged in the 

language of the indictment. (Id. at 7.) Thus, the government contends, only those defendants 

charged with quantities between 50 and 280 grams of crack cocaine are eligible for a reduced 

sentence, and defendants who actually distributed more than 280 grams, though convicted on 

charges of 50 grams or more, are not eligible. Seymour is not eligible for a sentence reduction, 

the government concludes, because Judge Andersen found him to be responsible for 4.5 

kilograms of crack cocaine. (Id.)

The government’s interpretation of the First Step Act is one that it has submitted many 

times to courts in this district and that has been repeatedly rejected. See, e.g., United States v. 

Jones, No. 10 CR 985, 2019 WL 4942365, at *3 (N.D. Ill. Oct. 8, 2019); United States v. Williams, 

402 F. Supp. 3d 442, 445 (N.D. Ill. 2019); United States v. Cross, 397 F. Supp. 3d 1184, 1186 

(N.D. Ill. 2019); United States v. Wright, No. 03 CR 362-2, 2019 WL 3231383, at *3 (N.D. Ill. July 

18, 2019); United States v. Johnson, No. 01 CR 543, 2019 WL 2590951, at *3 (N.D. Ill. June 24, 

2019); United States v. Booker, No. 07 CR 843-7, 2019 WL 2544247, at *2-3 (N.D. Ill. June 20, 

2019). These other courts have concluded that § 404(a)’s phrase “a violation of a Federal criminal 

statute” refers to what statute the defendant is charged with violating and not his actual conduct. 

After all, the statute concerns a “covered offense,” not “covered conduct.” See Williams, 402 F. 

Supp. 3d at 445–46; see also Hughey v. United States, 495 U.S. 411, 415–16 (1990) (holding 

that “offense” in 18 U.S.C. § 3663 refers to the “offense of conviction”). Like many colleagues, 

this court disagrees that the phrase “the statutory penalties for which were modified by section 2 

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or 3 of the Fair Sentencing Act” modifies “violation” as opposed to “Federal criminal statute.” As 

a court in another district explained, “Here, the ‘penalties’ clause is most naturally read as 

modifying ‘Federal criminal statute,’ the noun phrase immediately next to it. Indeed, Congress 

appears to have deliberately inserted ‘Federal criminal statute’ after the word ‘violation’ and added 

the word ‘statutory’ before the word ‘penalties’ to achieve this exact result.” United States v. Rose, 

379 F. Supp. 3d 223, 228 (S.D.N.Y. 2019) (citation omitted). These repeated references to 

criminal statutes and statutory penalties satisfy the court that “eligibility is determined by the 

statute(s) underlying the defendant's conviction and penalty, not the defendant's offense conduct.” 

Id. 

The cases the government cites to argue otherwise are inapposite, as Judge Chang 

explained in Williams, 402 F. Supp. 3d at 446. The Supreme Court in Sedima, S.P.R.L. v. Imrex 

Co., 473 U.S. 479, 489 (1985), did not define the term “offense.” And Sedima’s definition of 

“violation” as meaning “only a failure to adhere to legal requirements” was limited to the RICO 

statute. Likewise, United States v. Hayes, 555 U.S. 415, 421–426 (2009)—in which the Court 

held that “a misdemeanor crime of violence” under 18 U.S.C. § 921(a)(3) looked to the 

defendant’s conduct and not what he had been charged with—did not set out a categorical rule 

for interpretation of all federal criminal statutes. See Williams, 402 F. Supp. 3d at 447 (“[The 

Supreme Court] certainly did not hold that terms like ‘crime,’ ‘offense,’ or even ‘violation’ could or 

should always be understood to refer only to actual conduct rather than the elements of the crime 

of conviction.”); see also id. (noting that in Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009), another 

case the government cites, the Supreme Court acknowledged that “offense” can sometimes refer 

to a generic crime and not the defendant’s conduct).

Nor is the court persuaded that the consensus approach in this district contravenes 

congressional intent to eliminate sentencing disparities. The government urges that if Mr. 

Seymour were charged today, his indictment would say that he was responsible for 280 grams or 

more of crack cocaine; prosecutors originally listed only 50 grams because that amount triggered 

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the most severe penalty, so there was no point in charging a larger quantity. Therefore, if the 

court considers only the charge stated in the indictment, Mr. Seymour will benefit from having 

been charged in 2002 rather than now. However significant this concern may be, it is mitigated 

by the fact that relief under the First Step Act remains discretionary. See Williams, 402 F. Supp. 

3d at 449 (“The Act does not require a judge to reduce a sentence after holding that the defendant 

is eligible for relief. . . . Not only are judges not required to reduce the sentence, but they would 

naturally take evidence about the drug quantity into account in doing so.”); Wright, 2019 WL 

3231383, at *3 (“The issue before the Court is whether Wright is eligible for relief under the First 

Step Act, not whether his eligibility differs from other defendants. The Court will not disregard 

Wright’s eligibility based on an argument that other defendants might be subject to longer 

statutory minimum sentences.”). This court is also concerned that the government’s approach 

would require speculation about what would have happened had the Fair Sentencing Act been in 

effect in 2002, which the court declines to do. See Wright, 2019 WL 3231383, at *3 (quoting 

United States v. Pierre, 372 F. Supp. 3d 17, 22 (D.R.I. 2019)) (“[A]n approach that focuses on the 

particulars of the record to determine how the specific defendant committed his or her offense of 

conviction and how those facts would have hypothetically affected the charges brought against 

the defendant under the new statutory regime ‘effectively requires the Court to employ a 

prosecutor-friendly “way-back machine,” to conjure how the charge, plea, and sentencing would 

have looked had the Fair Sentencing Act of 2010 been in effect.’”). The court therefore concluides 

that Mr. Seymour is eligible for relief under the First Step Act.

B. Discretion to Reduce Sentence

A court may, for a covered offense, “impose a reduced sentence as if sections 2 and 3 of 

the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed.” 

First Step Act § 404(b) (citation omitted). Reducing a sentence is a discretionary matter for the 

court. Id. § 404(c) (“Nothing in this section shall be construed to require a court to reduce any 

sentence pursuant to this section.”).

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Mr. Seymour has been in custody since April 10, 2002—or about 216 months. (Def.’s 

Mot. [1895] ¶ 12.) He seeks a reduction in his sentence either to a term of time served or to a 

term of 256 months.1 (Id. ¶ 14.) With good-time credit, he asserts, a 256-month sentence would 

equate to just 218 months in custody. (Id.) As noted, he is scheduled to be released on April 8, 

2023. To determine whether those additional three years are necessary and appropriate, the 

court considers sentencing factors set forth in 18 U.S.C. § 3553(a). See United States v. 

Mansoori, No. 97 CR 63-9, 2019 WL 6700166, at *5 (N.D. Ill. Dec. 9, 2019); see also Rose, 379 

F. Supp. 3d at 234 (“[E]ven if consideration of § 3553(a) factors is not expressly required by the 

First Step Act, the Court concludes that it is appropriate to use that familiar framework to guide 

the exercise of discretion conferred by the First Step Act.”).

“Evidence of post-sentencing rehabilitation ‘may be highly relevant to several of the 

§ 3553(a) factors that Congress has expressly instructed district courts to consider at 

sentencing.’” Mansoori, 2019 WL 6700166, at *5 (quoting Pepper v. United States, 562 U.S. 476, 

491 (2011)). Mr. Seymour has engaged in numerous post-sentencing activities aimed at selfimprovement. For example, even though he obtained his GED many years ago, he has continued 

to complete a large number of educational and practical training courses. (Ex. 4 to Def.’s Reply 

[1905].) He also works for UNICOR and receives good work evaluations. (Def.’s Reply [1905] at 

9.) 

Members of Mr. Seymour’s immediate and extended family submitted numerous letters in 

support of his motion for a reduced sentence. Seymour’s youngest son has written in a letter to 

the court that he expects to help his father get a job when he is released. (See Letter from Jahad 

1 The request for 256 months is based on his current 292-month sentence and the 

36-month downward departure that Judge Andersen included in Mr. Seymour’s initial sentence. 

When he was resentenced under Amendment 782, the court was not permitted to impose a 

sentence below the bottom of the guidelines range. See Dillon v. United States, 560 U.S. 817, 

829–30 (2010) (holding that courts may not depart from sentencing guidelines ranges for 

defendants whose terms of imprisonment were based on a sentencing range that has been 

lowered by the Sentencing Commission).

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Amor Seymour to Judge Pallmeyer (June 14, 2019), Ex. 4 to Def.’s Mot. [1895].) That letter and 

others confirm that Mr. Seymour is part of a close-knit and supportive family. (See, e.g., Letter 

from Gail Mackey to Judge Pallmeyer (June 14, 2019), Ex. 6. to Def.’s Mot. [1895].) Despite 

having been in custody for some 18 years, Mr. Seymour has also managed to stay involved in 

the lives of his children and grandchildren even from prison. (See Letter from Jahad Amor 

Seymour to Judge Pallmeyer (June 14, 2019); Letter from Shakif Seymour to Judge Pallmeyer, 

Ex. 3 to Def.’s Mot. [1895]; Letter from Nikia Seymour to Judge Pallmeyer (June 14, 2019), Ex. 5 

to Def.’s Mot. [1895].) Mr. Seymour’s strong family support network suggests he will be in an 

environment that encourages a law-abiding life upon release.

The government offers three reasons that the court should not reduce Mr. Seymour’s 

sentence, but none is persuasive. First, the government argues that the court should reduce a 

defendant’s sentence only if that defendant was sentenced to the pre-Fair Sentencing Act 

mandatory minimum. (See Gov’t’s Resp. to Def.’s Mot. [1901] at 25–26.) But the government 

reads in a requirement that does not exist; there is no requirement that only those sentenced to 

the mandatory minimum may receive reduced sentences. Eligibility hinges on the indicted 

amount of crack cocaine and not the duration of the sentence. See Williams, 402 F. Supp. 3d at 

445–46. Relatedly, citing one portion of the sentencing hearing, the government insists that the 

mandatory minimum played no role in Judge Andersen’s original sentencing considerations. (See

Gov’t’s Resp. to Def.’s Mot. [1901] at 25.) But Judge Andersen did not sentence Mr. Seymour in 

a vacuum: he acknowledged what the guideline range was and that he was choosing to depart 

from it. (Sentencing Tr. at 41:21–25.) 

Second, the government urges that the court should refrain from granting any relief in light 

of the drug quantities Seymour was involved with. But that argument essentially repeats the 

sentencing disparity argument rejected above: that reducing his sentence would be a “windfall” 

because, were he charged today, Seymour would be indicted for a greater amount of crack 

cocaine. In essence, the government asks the court to keep Mr. Seymour in prison based on a 

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hypothetical. See Mansoori, 2019 WL 6700166, at *5 (“The Court will not assume that any 

defendant could have been indicted on a greater drug quantity.”). True, consistent sentencing for 

similarly-situated offenders is important, see Dorsey, 567 U.S. at 277–79 (noting concerns about 

“creating new anomalies—new sets of disproportionate sentences—not previously present” when 

applying new sentencing rules), but such concerns must be balanced against the lengthy 

sentence he has already served and the personal circumstances suggesting that Mr. Seymour 

will not offend again and can be a productive member of society. The government has not 

effectively explained why, after eighteen years, keeping Mr. Seymour in prison until 2023 remains

necessary to “promote respect for the law” and “provide just punishment for the offense.” 18 

U.S.C. § 3553(a)(2)(A).

Finally, the government notes that Mr. Seymour has committed four prison infractions in 

the last four years: two for possessing a hazardous tool, one for possessing a non-hazardous 

tool, and one for violating a furlough condition. (See Gov’t’s Resp. to Def.’s Mot. [1901] at 26–

27.) According to the government, these violations show that Mr. Seymour “continues to pose a 

significant risk for recidivism.” (Id. at 27.) Mr. Seymour addressed these infractions in his reply 

brief. (See Def.’s Reply [1905] at 6–8.) Both hazardous tool infractions were for possession of a 

cell phone, and he denied one of the charges. (Id. at 6–7.) The possession of a non-hazardous 

tool violation concerned a lighter. (Id. at 7.) And based on an explanation from Mr. Seymour’s 

wife, the violation of a furlough condition appears to have been the result of a mix-up. (See Letter 

from Teneishua Lawrence (July 20, 2019), Ex. 3 to Def.’s Reply [1905].) None of these infractions 

involved drugs or violence, and none occurred within the last three years. The court is not 

persuaded that these prison infractions demonstrate that Mr. Seymour poses a significant risk for 

recidivism. 

This court finds that Mr. Seymour is ready to be released. His post-sentencing 

rehabilitation, strong family network, and the many years he has already served show that a 

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sentence of time served is sufficient and not longer than necessary to achieve the goals of 

sentencing Mr. Seymour.

CONCLUSION

For the foregoing reasons, Defendant Andre Seymour’s motion [1895] under § 404(b) of 

the First Step Act is granted and the court reduces his sentence to a term of time served.

Defendant to be released from custody forthwith. The court leaves intact Seymour’s ten-year 

period of supervised release.

ENTER:

Date: April 15, 2020 __________________________________

REBECCA R. PALLMEYER

United States District Judge 

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