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Tuesday, February 22, 2011
Ind. Decisions - Two today from 7th Circuit
In USA v. Roger Slone (ND Ind., Lozano), a 16-page opinion, Judge Flaum writes:
Roger D. Slone was arrested during an operation in which law enforcement worked their way down the drug-supply food chain. An undercover agent with the Drug Enforcement Administration (“DEA”) drove a tractor-trailer filled with marijuana to an Indiana warehouse; law enforcement then took into custody those who received drugs from the shipment. Slone was arrested for conducting countersurveillance or security for a vehicle into which 500 kilograms of the drugs had been offloaded. He was subsequently convicted of conspiracy to distribute marijuana and sentenced to 120 months in prison. On appeal, Slone maintains that police lacked probable cause to arrest him. Even if true, that would not be sufficient to overturn his conviction. Evans v. Poskon, 603 F.3d 362, 364 (7th Cir. 2010). However, if police lacked probable cause to arrest him, then the exclusionary rule should have applied and led the district court to suppress self-incriminating post-arrest statements that Slone made to a federal agent, as well as evidence that was found in Slone’s vehicle. He argues as much and likewise contends that evidence from his vehicle should have been suppressed under the Supreme Court’s decision in Arizona v. Gant, 129 S. Ct. 1710 (2009). Neither argument is persuasive, however, and we affirm the judgment of conviction.
In USA v. James Guyton (ND Ind., Lozano), an 11-page opinion, Judge Hamilton writes:
Appellant James Guyton was sentenced for a crack cocaine offense before the Supreme Court held that the Sentencing Guidelines were advisory in United States v. Booker, 543 U.S. 220 (2005). Guyton’s guideline range was based on the career offender guideline, U.S.S.G. § 4B1.1, but the district court granted a downward departure under section 5K1.1 based on his assistance to the government. The court departed downward to a sentence within the range for crack cocaine offenses that would have applied to Guyton absent the career offender designation.
In limited circumstances, 18 U.S.C. § 3582(c)(2) authorizes a district court to reduce a sentence of imprisonment imposed under a previous version of the United States Sentencing Guidelines so as to give retroactive effect to guideline amendments that the Sentencing Commission has chosen to make retroactive. A reduction is permitted only if “the guideline range applicable to that defendant” has been retroactively lowered. U.S.S.G. § 1B1.10(a). After the Sentencing Commission retroactively reduced the guideline ranges for crack cocaine offenses, Guyton moved for a sentence reduction under section 3582(c)(2). The district court denied his motion, and Guyton has appealed. We affirm.
We held in United States v. Forman, 553 F.3d 585, 589-90 (7th Cir. 2009), that a crack cocaine offender sentenced under the career offender guideline was not eligible for a reduced sentence under section 3582(c)(2). The crack cocaine amendment simply did not lower the defendant’s applicable guideline range. Here we face a variation on the Forman issue: whether a defendant sentenced under the career offender guideline, but with a downward departure for substantial assistance, is eligible for a reduction. We hold that, for purposes of section 3582(c)(2), the relevant sentencing range is the one calculated before the defendant received the benefit of a downward departure under Chapter 5 of the Guidelines. The Sentencing Commission has not retroactively reduced the career offender guideline that determined the guideline range applicable to defendant Guyton. The reasoning of Forman applies, therefore, and the district court was required to deny Guyton’s motion.
Posted by Marcia Oddi on February 22, 2011 12:06 PM
Posted to Ind. (7th Cir.) Decisions