USAv DEREK CUNNINGHAM AND NORMAN THOMAS, 08-2901 & 2931.  This case presents the consolidated appeals of Derek Cunningham and Norman Thomas. Their appeals arise from the same prosecution and raise the same purely legal issue: whether a district court, in reducing a defendant's sentence pursuant to 18 U.S.C. § 3582(c)(2), has authority under United States v. Booker, 543 U.S. 220 (2005) to reduce a defendant's sentence beyond the retroactive Guidelines amendment range.

For the reasons explained below, we hold that a district court does not have authority to do so and therefore affirm the judgment of the district court.

We review the district court's determination of questions of law de novo. United States v. Ryerson, 545 F.3d 483, 487 (7th Cir. 2008).

Defendants advance four arguments to support their contention that a district court can reduce a defendant's sentence beyond the retroactive Guidelines amendment range. First, they disagree that the Guidelines could be advisory during a defendant's initial sentencing but mandatory in section 3582(c)(2) proceedings.

Second, and to some degree in the alternative, they argue that the Commission's policy statements themselves are advisory and thus are not truly inconsistent with a below-guidelines sentence.

Third, they claim that if the Commission's policy statements were given full effect, they would strip courts of their traditional sentencing discretion by constraining their consideration of the section 3553(a) factors to the ex-tent they are applicable-consideration that is mandated under the terms of section 3582(c)(2).

Finally, they argue that since the Supreme Court has held that district courts have discretion to depart from the Guidelines even based on disagreements with the Guideline's policy statements, see, e.g., Spears v. United States, __ U.S. __,__ S.Ct. __, 2009 WL 129044 *2 (Jan. 21, 2009), the enactment of the Guideline amendment and its policy statements cannot strip the sentencing courts of their discretion by mandating the strict application of a two level departure.

The Ninth Circuit adopted many of the defendants' views in United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007). In Hicks, the Ninth Circuit concluded that limiting the extent of a section 3582(c)(2) reduction to that prescribed by the Sentencing Commission amounts to a mandatory application of the Sentencing Guidelines that is prohibited by Booker.

The government urges us to decline to follow Hicks. They present three main arguments in support of affirming the district court. First, they note that 28 U.S.C. § 944(u) gives the Sentencing Commission the exclusive power to decide under "what circumstances and by what amounts the sentences of prisoners . . . may be reduced." See 28 U.S.C. § 944(u).

Several recent circuit court decisions support the government's position. See United States v. Rhodes, 549 F.3d 833 (10th Cir. 2008); United States v. Dunphy, ___ F.3d ___, 2009 WL 19139 (4th Cir. Jan. 5, 2009); United States v. Starks, ___ F.3d ___, 2009 WL 66115 (8th Cir. Jan. 13, 2009).

Contrary to the defendants' contention, there is no "inherent authority" for a district court to modify a sentence as it pleases; indeed a district court's discretion to modify a sentence is an exception to the statute's general rule that "the court may not modify a term of imprisonment once it has been imposed." See 18 U.S.C. § 3582(c). When Congress granted district courts discretion to modify sentences in section 3582(c)(2), it explicitly incorporated the Sentencing Commission's policy statements limiting reductions.

Thus, the Commission's policy statements should for all intents and purposes be viewed as part of the statute.

We side with the majority of courts and hold that district courts, in reducing a defendant's sentence pursuant to 18 U.S.C. § 3582(c)(2), do not have authority to reduce the defendant's sentence beyond the retroactive Guidelines amendment range. We thus AFFIRM the judgment of the district court.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

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