United States of America v. Kirk Acrey

# NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 March 21, 2016*
Decided April 8, 2016

Before

FRANK H. EASTERBROOK, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge

No. 15-3061
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KIRK ACREY,
Defendant-Appellant.

1

Appeal from the United
States District Court for
the Northern District of
Illinois, Eastern Division.
No. 07 CR 211
Amy J. St. Eve, Judge.

## Order

After the Sentencing Commission lowered the drug table by two levels, and
made this change retroactive (see Amendment 782), Kirk Acrey asked the district
court to reduce his sentence. The judge denied his motion, explaining that
Amendment 782 had not changed the Guideline range under which Acrey was
sentenced. The judge observed that Acrey's range came from the career-offender

\* This successive appeal has been submitted to the original panel under Operating Procedure 6(b).
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).

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Guideline, not from the drug table, and that the Sentencing Commission had not
changed the career-offender Guideline.

On appeal Acrey contests this understanding, observing that at sentencing
the district court did not rely wholly on the career-offender Guideline. Ruling
that Acrey's criminal-history score may have overstated the seriousness of his
record, the district judge took the drug table into account in imposing his 150-
month sentence. That decision to vary from the career-offender Guideline is
enough, Acrey maintains, to support a conclusion that his sentence was based on
the drug table, which he contends makes him eligible for a reduction under
Amendment 782.

His problem, however, is that 18 U.S.C. §3582(c)(2), which authorizes
reductions in sentences "based on" Guidelines later reduced, also specifies that
reduction is permissible only "if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission." And through
Amendment 759, issued in 2011, the Commission specified that reductions are
available only if an amendment lowered the defendant's "applicable guideline
range," which is the range "determined before consideration of any departure
provision in the Guidelines Manual or any variance." U.S.S.G. §1B1.10 n.1(A).
Acrey's "applicable guideline range" is the career-offender range, which has not
been lowered. Section 1B1.10 n.1(A) applies even if the "applicable guideline
range" was not in fact the basis for Acrey's sentence. See, e.g., United States v.
Steele, 714 F.3d 751, 753-57 (2d Cir. 2013); United States v. Flemming, 723 F.3d 407,
411-13 (3d Cir. 2013); United States v. Pleasant, 704 F.3d 808, 811-14 (9th Cir.
2013).

Because the career-offender Guideline is the "applicable guideline range" for
Acrey notwithstanding the district judge's reference to the drug table in his
sentencing, he is ineligible for a lower sentence under Amendment 782.

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