United States of America v. Ray Anthony Pugh

*After examining 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. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 10, 2009 *
Decided December 23, 2009
Before
WILLIAM J. BAUER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 09‐1967
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RAY ANTHONY PUGH,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 01‐40021‐GPM
G. Patrick Murphy,
Judge.
O R D E R
Ray Anthony Pugh appeals from an order reducing his prison sentence under 18
U.S.C. § 3582(c)(2). Pugh wanted a bigger reduction, but the district court concluded that it
was not authorized to go any lower. We affirm the court’s decision.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐1967 Page 2
Pugh pleaded guilty in 2001 to possessing with intent to distribute crack cocaine. See
21 U.S.C. § 841(a)(1). With a total offense level of 36 and criminal history category of III, his
guidelines imprisonment range was 235 to 292 months. The district court imposed a term of
235 months, and we affirmed the judgment on direct appeal, United States v. Pugh, 39 F.
App’x 392 (7th Cir. 2002).
In 2008, Pugh moved under § 3582(c)(2) for a sentence reduction based on a
retroactive amendment to U.S.S.G. § 2D1.1. That amendment, if applied to Pugh, would
lower his base offense level by two levels and reduce his imprisonment range to 188 to 235
months. Pugh, who filed his motion pro se, asked the district court to reduce his sentence
even below 188 months in light of other factors in 18 U.S.C. § 3553(a). The court appointed
the public defender’s office to represent Pugh, and his new lawyer filed a separate motion
under § 3582(c)(2) asking for a reduction to 188 months. Counsel filed an additional
motion, however, asking the court to independently consider Pugh’s pro se motion.
The district court granted counsel’s motion and reduced Pugh’s term of
imprisonment to 188 months. But the court denied Pugh’s pro se motion and explained
that, in Pugh’s case, a sentence below the amended guidelines range was not authorized by
§ 3582(c)(2).
The sentencing guideline that implements § 3582(c)(2) does not permit a reduction
below the amended imprisonment range unless the original term of imprisonment was itself
below‐range, and Pugh’s was not. See U.S.S.G. § 1B1.10(b)(2). Pugh argues, though, that
United States v. Booker, 543 U.S. 220 (2005), which rendered the sentencing guidelines
advisory, should also be read to eliminate any restriction on the application of § 3582(c)(2).
As he acknowledges, however, we held in United States v. Cunningham, 554 F.3d 703, 707‐08
(7th Cir. 2009), that Booker does not make § 3582(c)(2) or § 1B1.10(b)(2) advisory. Pugh’s
brief adds nothing new since our Cunningham decision.
AFFIRMED.

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