Judges: Per Curiam
Filed: Dec. 08, 2009
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Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 December 8, 2009 Decided December 8, 2009 Before FRANK H. EASTERBROOK, Chief Judge RICHARD D. CUDAHY, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge No. 09-1069 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Eastern District of Wisconsin. v. No. 05-cr-71 CEDRIC HAYES, Ru
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 December 8, 2009 Decided December 8, 2009 Before FRANK H. EASTERBROOK, Chief Judge RICHARD D. CUDAHY, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge No. 09-1069 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Eastern District of Wisconsin. v. No. 05-cr-71 CEDRIC HAYES, Rud..
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NONPRECEDENTIAL DISPOSITION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 December 8, 2009
Decided December 8, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09‐1069
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 05‐cr‐71
CEDRIC HAYES, Rudolph T. Randa,
Defendant‐Appellant. Judge.
O R D E R
Cedric Hayes was convicted of possessing crack cocaine with intent to distribute,
see 21 U.S.C. § 841(a)(1), and was sentenced to 46 months’ imprisonment. After the
sentencing guidelines were amended retroactively to reduce the penalties for crack offenses,
Hayes, through counsel, moved under 18 U.S.C. § 3582(c)(2) for a reduced sentence. The
district court concluded that he was eligible for, but not deserving of, a lower sentence and
denied the motion.
Hayes filed a notice of appeal, but his appointed lawyer has concluded that the case
is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). We
invited Hayes to respond to counsel’s motion, though he did not. See CIR. R. 51(b). Our
review is limited to the potential issue identified in counsel’s facially adequate brief.
See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
No. 09‐1069 Page 2
The revised offense levels for crack offenses lowered the upper end of the
imprisonment range from the 46 months Hayes received to 37 months. But the district court
explained that Hayes’s pattern of drug dealing and his criminal history, not the small
amount of crack involved in the offense of conviction, had motivated the sentence at the
high end of the range, and given these factors the court did not believe that a lower sentence
was appropriate. Counsel considered arguing that this decision was an abuse of discretion
but recognized that it would be frivolous to do so. A district court has discretion to deny a §
3582(c)(2) motion even when a retroactive amendment to the guidelines would lower the
defendant’s imprisonment range, see United States v. Young, 555 F.3d 611, 615 (7th Cir. 2009);
United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999), and that discretion is not abused
when a court declines to lower a sentence because of the danger that early release would
present to the community, see U.S.S.G. § 1B1.10 cmt. n.1(B)(ii); United States v. Johnson, 580
F.3d 567, 570 (7th Cir. 2009); United States v. Borden, 564 F.3d 100, 103‐04 (2d Cir. 2009);
United States v. Johnson, 564 F.3d 419, 424 (6th Cir.), cert. denied, 2009 WL 2496372 (2009).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.