United States of America v. Tim Bailey

After examining the briefs and record, we have concluded that oral argument is*
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 30, 2008*
Decided November 4, 2008
Before
WILLIAM J. BAUER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08-2321
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIM BAILEY,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 02-CR-10144
Joe Billy McDade,
Judge.
O R D E R
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08-2321 Page 2
Tim Bailey is serving concurrent 240-month prison terms for dealing crack cocaine.
See 21 U.S.C. §§ 846, 841(a)(1). Bailey moved under 18 U.S.C. § 3582(c)(2) to reduce those
terms on the ground that the United States Sentencing Commission has issued a retroactive
amendment lowering the base offense level for some crack offenses. The district court
denied his motion and Bailey appeals.
The pertinent amendment, see U.S.S.G. App. C, Supp. 2007, amend. 706, pp. 227-31,
does not help Bailey. Bailey’s drug crimes involved at least 50 grams of crack, and he
already had a felony drug conviction, so the mandatory-minimum penalty for his crimes
was 240 months. See 21 U.S.C. §§ 841(b)(1)(A)(iii), 851. Since Bailey received the statutory
minimum, the district court lacked the authority to reduce his sentence further.
See Kimbrough v. United States, 128 S. Ct. 558, 574 (2007) (“[A]s to crack cocaine sentences in
particular, we note [that] . . . district courts are constrained by the mandatory minimums
Congress prescribed in the 1986 Act.”); United States v. Black, 523 F.3d 892, 892-93 (8th Cir.
2008); United States v. Green, 532 F.3d 538, 546 n.8 (6th Cir. 2008); United States v. Harris, 536
F.3d 798, 813 (7th Cir. 2008) (“While the sentencing guidelines may be only advisory for
district judges, congressional legislation is not.”); United States v. Neal, 46 F.3d 1405, 141
(7th Cir. 1995).
AFFIRMED.

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