Judges: PerCuriam
Filed: May 23, 2014
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 23, 2014* Decided May 23, 2014 Before ANN CLAIRE WILLIAMS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 13-2680 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Central District of Illinois. v. No. 09-30062-001 HERMAN E. BLUE, Sue E
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 23, 2014* Decided May 23, 2014 Before ANN CLAIRE WILLIAMS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 13-2680 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Central District of Illinois. v. No. 09-30062-001 HERMAN E. BLUE, Sue E...
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2014*
Decided May 23, 2014
Before
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐2680
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 09‐30062‐001
HERMAN E. BLUE, Sue E. Myerscough,
Defendant‐Appellant. Judge.
No. 13‐2686
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 08‐10031‐003
DARYL MILLER, Joe Billy McDade,
Defendant‐Appellant. Judge.
*
After examining the briefs and records, we have concluded that oral argument
is unnecessary. Thus, these appeals are submitted on the briefs and records. See FED. R.
APP. P. 34(a)(2)(C).
Nos. 13‐2680 & 13‐2686 Page 2
O R D E R
Herman Blue and Daryl Miller each appeal from an order denying a second
motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction. Because the appeals
present the identical issue, we have consolidated them for disposition.
Blue and Miller were sentenced for drug offenses involving crack cocaine, see 21
U.S.C. §§ 841(a)(1); 846, before enactment of the Fair Sentencing Act of 2010, Pub. L.
No. 111‐220, 124 Stat. 2372. Both defendants faced a statutory minimum higher than the
guidelines imprisonment range that otherwise would have applied. Thus the statutory
minimum (10 years for Blue, 20 for Miller) became the guidelines sentence. See U.S.S.G.
§ 5G1.1(b); United States v. Wren, 706 F.3d 861, 862 (7th Cir. 2013). Each defendant
received the minimum, though both continued cooperating with investigators. The
district court, on the government’s motion, later reduced Blue’s sentence to 108 months
and Miller’s to 144. See 18 U.S.C. §§ 3553(e), 3582(c)(1)(B); FED. R. CRIM. P. 35(b).
In 2011 the Sentencing Commission responded to the Fair Sentencing Act by
retroactively lowering the base offense level for most crack offenses. See U.S.S.G.
App. C, Vol. III, amends. 750, 759 (2011). In 2012 Blue and Miller filed their first motions
under § 3582(c)(2) seeking sentence reductions. District Judges Myerscough and
McDade appointed counsel to review their pro se motions; counsel concluded that
neither defendant was eligible for relief under § 3582(c) because both had been
sentenced based on a statutory minimum, not a guidelines range that later was reduced.
See United States v. Poole, 550 F.3d 676, 678–79 (7th Cir. 2008) (explaining that retroactive
amendment which lowers a defendant’s base offense level does not lower his guidelines
range if the sentence was compelled by statutory minimum). The district judges agreed
with counsel and rejected the motions. Neither defendant appealed.
Blue and Miller tried again in 2013 with this second round of § 3582(c)(2)
motions. This time they cited out‐of‐circuit opinions in arguing that Amendment 759
implicitly abrogated Poole, making them now eligible for a sentence reduction. In that
amendment the Sentencing Commission declared, for the first time, that the “guideline
range” referred to in U.S.S.G. § 1B1.10, and applicable to motions for a sentence
reduction under § 3582(c)(2), is the imprisonment range calculated “before
consideration of any departure provision in the Guidelines Manual or any variance.”
See U.S.S.G. § 1B1.10 cmt. n.1(A) (2012). Blue and Miller argued that this change meant,
contrary to Poole, that their “guideline range” was the range calculated before the
statutory minimum sentence was considered. But the district judges, relying on United
Nos. 13‐2680 & 13‐2686 Page 3
States v. Redd, 630 F.3d 649, 651 (7th Cir. 2011), denied their new motions as successive
and, thus, unauthorized. Judge McDade added that, anyway, Miller remained ineligible
for a sentence reduction due to Poole, rejecting Miller’s assertion about the effect of
Amendment 759.
On appeal Blue and Miller argue that Redd does not foreclose their motions as
successive and, if it does, we should overrule that decision. Miller also presses his
contention that Amendment 759 abrogated Poole. Yet we need not discuss Redd because,
after the appellants’ motions had been denied, we reaffirmed Poole and rejected their
interpretation of Amendment 759. United States v. Johnson, __ F.3d __, 2014 WL 1673290,
at *2 (7th Cir. Mar. 31, 2014). Accordingly, neither appellant is eligible for a sentence
reduction, and thus the orders denying their motions are AFFIRMED.