United States of America v. Elizabeth Wiggins

*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. 34(a); Cir. R. 34(f).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 29, 2009*
Decided July 15, 2009
Before
JOHN L. COFFEY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09-1798
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
ELIZABETH WIGGINS,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 93-CR-30025-WDS-026
William D. Stiehl,
Judge.
O R D E R
In 1994, Elizabeth Wiggins was convicted by a jury of money laundering and
conspiracy to distribute crack cocaine. She was sentenced to concurrent terms of 240
months’ imprisonment on the money laundering charges and 360 months’ imprisonment
on the conspiracy charge. She and the five co-defendants with whom she proceeded to trial
appealed, and we affirmed her convictions and sentences. See United States v. Carraway, 108
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09-1798 Page 2
F.3d 745, 760-61 (7th Cir. 1997). After the Sentencing Commission reduced the Guideline
range for crack cocaine, see Amendment 706, and made that change retroactive, see
Amendments 711 and 715, Wiggins filed a motion in the district court to reduce her
sentence under 18 U.S.C. § 3582(c)(2). The district court reduced her sentence on the
conspiracy charge from 360 months’ imprisonment to 324 months’ imprisonment. Wiggins
appeals, arguing that she is entitled to a full resentencing under United States v. Booker, 543
U.S. 220 (2005), and its progeny.
When the district court resentenced Wiggins, it adhered to the drug quantity table
as amended by Amendment 706 and reduced her Offense Level from 42 to 40, which
resulted in a sentencing range of 324-405 months’ imprisonment. The district court’s
sentence complied with section 3582(c)(2), which allows for a reduction to a term of
imprisonment “if such a reduction is consistent with applicable policy statements issued by
the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). As we explained in United States v.
Cunningham, 554 F.3d 703 (7th Cir. 2009), the applicable policy statements dictate first, that
a reduction under section 3582(c)(2) does not constitute a full resentencing, see U.S.S.G.
1B1.10(a)(3) (policy statement), and second, that a court shall not reduce the defendant’s
term of imprisonment to less than the minimum of the guideline range as amended, see
U.S.S.G. 1B1.10(b)(2)(A) (policy statement). Wiggins argues, as did the defendant in
Cunningham, that the limitation on the district court’s ability to conduct a full resentencing
and choose a sentence below the amended guideline range violates Booker’s mandate that
the Sentencing Guidelines be treated as advisory. See Booker, 543 U.S. at 245-46.
As Wiggins acknowledges, we rejected this precise argument in Cunningham. In
Cunningham we considered whether Booker’s general rule that the Sentencing Guidelines
are advisory meant that district courts had the authority when making sentence
modifications under § 3582(c)(2) to “treat the amended Guideline range as advisory despite
the Commission’s policy statements to the contrary.” Cunningham, 554 F.3d at 705. We
concluded that Booker does not require a district court to treat the guidelines as advisory in
the limited context of a resentencing under § 3582(c), a statute legally distinct from
§ 3553(a), which governs original sentencing proceedings. Cunningham, 554 F.3d at 707-08.
In so doing, we rejected each of the arguments now advanced by Wiggins. See Cunningham,
554 F.3d at 706-08; but see United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007) (holding that
district courts may reduce a sentence below the amended guideline in a resentencing under
§ 3582(c)). In short, Wiggins’s claim that the district court possessed discretion to sentence
her below her amended guideline range is squarely foreclosed by Cunningham, which we
decline to reconsider at this time.
AFFIRMED.

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