Gregory Hayes v. United States of America

*After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2005*
Decided June 29, 2005
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-4158
GREGORY HAYES,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States
District Court for the Eastern District
of Wisconsin
No. 95-CR-135
Thomas J. Curran,
Judge.
ORDER
Gregory Hayes pleaded guilty in 1996 to one count of conspiracy to possess
with intent to distribute cocaine, 21 U.S.C. §§ 846, 841(a)(1), three counts of
possession with intent to distribute cocaine, id. § 841(a)(1), and seventeen counts of
using a telephone to commit a drug felony, id. § 843(b). He was sentenced to two
terms of 336 months in prison, two terms of 240 months in prison, and seventeen
terms of 48 months in prison, all to run concurrently. He appealed his convictions,
see United States v. Adams, 125 F.3d 586 (7th Cir. 1997), litigated a motion to
vacate his sentence under 28 U.S.C. § 2255, sought unsuccessfully to litigate a
successive § 2255 motion, and in this action asked the district court to reduce his
sentence under 18 U.S.C. § 3582(c)(2). That statute allows a court to reduce a
defendant’s term of imprisonment if a subsequent amendment to the sentencing

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No. 04-4158 Page 2
guidelines lowers the relevant guideline range. Hayes argues that the district court
should have lowered his prison terms in light of Amendment 591 to the guidelines,
which amended U.S.S.G. §§ 1B1.1 and 1B1.2 to require sentencing courts to select,
except in limited circumstances, the Chapter 2 offense guideline prescribed for the
offense of conviction. See U.S.S.G. App. C, Vol. II, amend. 591. He also suggests
for the first time on appeal that he deserves a new sentencing hearing because his
sentencing ran contrary to the Supreme Court’s decision in United States v. Booker,
125 S. Ct. 738 (2005).
Appendix A of the guidelines manual connects offenses, identified by statute,
with offense guidelines in Chapter 2 of the manual. See U.S.S.G. App. A. The
Chapter 2 guidelines instruct courts how to score various factors typical of a
particular crime in calculating an offense level. Amendment 591, which became
effective in November 2000, altered the application rules in Chapter 1. The
application rules now direct courts to select the Chapter 2 offense guideline
associated with the specific offense of conviction. See U.S.S.G. App. C, Vol. II,
amend 591; id. §§ 1B1.1(a), 1B1.2(a) & cmt. n.1; see United States v. Gracia, 272
F.3d 866, 875-76 (7th Cir. 2001) (explaining Amendment 591). With one exception
not relevant here, see U.S.S.G. § 1B1.2(a) and cmt. n.1, the amendment
discontinued the practice adopted by some courts of selecting a guideline section in
Chapter 2 based on uncharged relevant conduct. See United States v. Hurley, 374
F.3d 38, 39-40 (1st Cir. 2004) (discussing purpose of amendment).
Although Amendment 591 is retroactive, U.S.S.G. § 1B1.10, it cannot benefit
Hayes. The version of Appendix A in effect when Hayes was sentenced, see
U.S.S.G. § 1B1.11, linked his convictions for conspiracy, possession with intent to
distribute, and use of a telephone to commit a drug felony with U.S.S.G. § 2D1.1,
see U.S.S.G. App. A (1997). Just as Amendment 591 would later require, the court
used § 2D1.1 as the starting point to calculate Hayes’s offense level.
Hayes does not directly dispute that this is the procedure the sentencing
court followed in calculating his offense level, but he instead suggests that the court
should not have considered uncharged conduct at all in calculating his offense level.
He relies on Booker to buttress his argument that the court should not have
engaged in factfinding at his sentencing hearing regarding that uncharged conduct.
Hayes misunderstands Amendment 591. It did not prohibit the practice of using
relevant conduct to calculate an offense level; it merely instructed courts how to
select an offense guideline in Chapter 2 of the manual in order to calculate an
offense level. See Hurley, 374 F.3d at 40-41; United States v. Rivera, 293 F.3d 584,
586-87 (2d Cir. 2002).
Furthermore, the statutory predicate for this case, 18 U.S.C. § 3582(c)(2),
authorizes an inmate to file a motion to reduce a sentence based on a subsequent

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No. 04-4158 Page 3
amendment to the guidelines, not based on new case law. The proper way for
Hayes to challenge his sentence on the basis of Booker would be to file a motion
under 28 U.S.C. § 2255. Because Hayes has already filed one § 2255 motion, he
would need permission from this court to file a second or successive § 2255 motion.
See 28 U.S.C. § 2244(b)(2). He would not receive that permission, however, in light
of our holding that Booker does not apply retroactively to cases on collateral review.
See McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005).
The decision of the district court is AFFIRMED.

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