United States of America v. Frankie Alicea

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 30, 2011 *
Decided March 30, 2011
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐3470
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
FRANKIE ALICEA,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
94 CR 348
Suzanne B. Conlon,
Judge.
O R D E R
Frankie Alicea appeals from an order denying his motion for a sentence reduction
under 18 U.S.C. § 3582(c)(2). We affirm the decision.
Alicea set up a meeting with an undercover postal inspector, ostensibly to sell checks
stolen from the mail. Instead he pulled a gun and robbed the inspector. Surveillance agents
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* 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)(C).

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No. 10‐3470 Page 2
arrested Alicea, who was convicted after a jury trial of assaulting a federal agent, 18 U.S.C.
§ 111, using a firearm during a crime of violence, id. § 924(c)(1), possessing a firearm as a
convicted felon, id. § 922(g)(1), and possessing stolen mail, id. § 1708. He was sentenced in
1994 to a total of 322 months’ imprisonment. That total includes 262 months on the
§ 922(g)(1) count as an armed career criminal, see id. § 924(e); U.S.S.G. § 4B1.4, and a
mandatory consecutive term of 60 months for the § 924(c)(1) conviction. We upheld the
convictions and prison sentences on direct appeal. United States v. Alicea, No. 94‐3795 (7th
Cir. Feb. 27, 1996).
In his motion under § 3582(c)(2), Alicea contended that he is eligible for a reduced
sentence on the § 922(g)(1) count on the basis of Amendment 599 to the sentencing
guidelines. That 2000 amendment, which is retroactive, see U.S.S.G. § 1B1.10(c), principally
clarified that defendants convicted under § 924(c)(1) in addition to a statute punishing the
underlying crime of violence or drug trafficking crime should not be given upward
adjustments for possessing or using guns or explosives when calculating the offense level
for the underlying offense. Id. app. C, amend. 599 (2000). The amendment also provides,
however, that a defendant convicted under both § 924(c)(1) and § 922(g)(1) should not
receive an increase for possessing or using a gun in connection with another felony offense,
see id. § 2K2.1(b)(6), when calculating the offense level for the § 922(g)(1) crime. Id. app. C,
amend. 599. Alicea asserted that he had received a 4‐level increase under § 2K2.1(b)(6)
(formerly numbered as subsection (b)(5)) for assaulting and robbing the postal inspector.
The district court denied Alicea’s motion, explaining that he was sentenced as an armed
career criminal, see id. § 4B1.4, and that § 2K2.1(b)(6) had no effect on the guidelines
imprisonment range. Moreover, the court stated, Alicea had not identified any other recent
amendment that is relevant and retroactive.
On appeal Alicea essentially abandons his reliance on Amendment 599 and now
contends that Amendment 674, adopted in 2004, warrants a reduction under § 3582(c)(2).
Among its many changes, that amendment forecloses increases in offense level and criminal
history category under subsections (b)(3)(A) and (c)(2) of § 4B1.4 if an armed career criminal
also receives a mandatory consecutive sentence under § 924(c)(1). U.S.S.G. app. C, amend.
674 (2004). Amendment 674 would have lowered Alicea’s offense level on the § 922(g)(1)
count if it had been adopted before he was sentenced. But this amendment is not
retroactive, and district courts have no authority to modify a sentence under § 3582(c)(2)
unless the Sentencing Commission has made an amendment retroactive. See 18 U.S.C.
§ 3582(c)(2); U.S.S.G. § 1B1.10; Dillon v. United States, 130 S. Ct. 2687, 2691 (2010); United
States v. Guyton, No. 09‐3866, 2011 WL 590110, at *1 (7th Cir. Feb. 22, 2011); Ebbole v. United
States, 8 F.3d 530, 539 (7th Cir. 1993).
We have reviewed Alicea’s remaining arguments, and none has merit.
AFFIRMED.

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