United States of America v. Robert L. Sleepers

NONPRECEDENTIAL DISPOSITION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 October 2, 2008*
Decided October 9, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08-2179
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT L. SLEEPERS,
Defendant-Appellant.
Appeal from the United
States District Court for the
Northern District of Indiana,
South Bend Division.
No. 3:03 CR 084 AS
Robert L. Miller, Jr., Chief
Judge.
Order
Sleepers pleaded guilty in 2004 to a cocaine-distribution conspiracy. 21 U.S.C. §846.
He admitted in a written plea agreement to distributing approximately 100 kilograms
of cocaine. This, plus Sleepers’s prior convictions (covered by an information under 21
U.S.C. §851), set the statutory minimum penalty at 240 months’ imprisonment, which
was the sentence the district court imposed. After the Sentencing Commission lowered
the offense level for crack cocaine and made the change retroactive, see U.S.S.G.
§2D1.1(c); Amendment 706, Sleepers asked the district court to reduce his sentence. The
judge declined, and Sleepers has appealed.
All that need be said to resolve this appeal is that Sleepers’s sentence is already the
lowest permitted by law. It therefore makes no difference how much of the 100 kilo-
grams was crack and how much was cocaine hydrochloride, or what changes the
Commission has made to the Guidelines. Nothing the Commission has done could
authorize (or purports to authorize) a district judge to disregard a statutory minimum
penalty. See Neal v. United States, 516 U.S. 284 (1996). (Sleepers believes that his 240-
month sentence is unlawful because the §251 information was untimely, but he has al-
* 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).

-- 1 of 2 --

No. 08-2179 Page 2
ready filed and lost a collateral attack. The requirements of a successive collateral attack
have not been satisfied, so application of the statutory minimum is no longer open to
question. See Godoski v. United States, 304 F.3d 761, 763 (7th Cir. 2002).)
AFFIRMED

-- 2 of 2 --