# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 7, 2009 ∗

Decided December 14, 2009



### Before

F RANK H. E ASTERBROOK

, Chief Judge

J OHN L. C OFFEY

, Circuit Judge

J OEL M. F LAUM

, Circuit Ju dge



### No

. 09

- 3213

U NITED S TATES OF A MERICA

, Plaintiff

- Appellee

,

v.

W ILLIAM L. C URTIS

, Defendant

- Appellant

. Appeal from the United

States District Court for the

Southern District of Illinois.

No. 99 CR 40026

- JPG
J. Phil Gilbert

, Judge

.

Order

W illiam Curtis is se rving a sentence of 327 months’ i mprisonment for crack

cocaine offenses. That is the upper limit of his original Guidelines range of 262 to 327 months. After the Sentencing Commission reduced the ranges for crack offenses, and

made tho se changes retroactive, Curtis asked the district judge to lower his sentence

under 18 U.S.C. § 3582(c)(2). The district court concluded that Curtis is eligible for a reduction and that his new range is 240 to 262 months. (The lower bound reflects a

statuto ry minimum sentence.)

∗ 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 NONPRECEDENTIAL DISPOSITION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. 32.1No. 09

- 3213 Page 2

The judge concluded that Curtis is not an appropriate beneficiary of the changes. The judge stated when sentencing Curtis that he would have ordered him to serve
more than 327 months had he been allowed to do so, indeed that his cri me and criminal history, combined with his reckless endangerment of officers and civilians when trying to escape, justified a sentence of life imprisonment. But the statutory maximum for his crime is 30 years, and until United States v. Booker , 543 U.S. 2 20 (2005), judges were o bliged to follow the Commission’ s prescriptions. Considering al l developments since the Curtis’ s sentencing, including Booker as well as the new Guideline range, the judge stated that he now thinks that 327 months is the right

sente nce.

Counsel has filed a motion to withdraw from the appeal and submitted a brief that complies with Anders v. California

, 386 U.S. 738 (1967). Curtis was invited to respond, see Circuit Rule 51(b), and did so.

Counsel observes that § 3582(c)(2) gives a judge discretion to reduce a sentence but does not compel the judge to use that authority. See United States v. Young , 555 F.3d 611, 614 (7th Cir. 2009). Curtis responds that, by leaving his sentence in place, the judge has disregarded the Sentencing Com m ission’ s decision to reduce the ratio between crack and powder cocaine. But the judge did not “disregard” that decision. He found Curtis eligible for a reduction and recognized that the Commission favors 240 to 262 months. The judge well understood that a sentence of 327 months

subst antially exceeds the Commission’ s recommendation. The judge also explained why he thinks 32 7 months appropriate for Curtis’ s total conduct. The statute gives discretion to the district judge rather than the court of appeals. We do not see any

non

- frivolous arg ument that the sentencing judge’ s discretion has been abused.

Curtis wanted the district court to recalculate his range by deleting a two

- level enhancement for obstruction of justice that had been one contributor to the or iginal sentence. Curtis maintains that his high

- speed flight from police, which ended in a

crash, should not have been treated as obstruction. Section § 3582(c)(2), however, permits a district judge to implement retroactive changes adopted by the Sentencing Commission; it does not require (or even permit) the district judge to start from scratch and reopen issues that could have been raised on appeal following the original sentencing. The Commission has not made any retroactive change to the Guidelines

that deal with obstructing justice. There is accordingly no appellate issu e concerning

the district court’s conclusion that Curtis’ s revi sed range is 240 to 262 months’
imprisonment.

Counsel’ s motion to withdraw is granted, and the appeal is dismissed as

friv olous.