United States of America v. Francisco Uresti

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 10, 2024*
Decided May 13, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-3136
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO URESTI,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 09-cr-62-wmc
William M. Conley,
Judge.
O R D E R
Francisco Uresti, a federal prisoner, appeals the denial of his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to
the Sentencing Guidelines. Uresti had unsuccessfully sought a sentence reduction based
on the same amendment, Amendment 782, nine years earlier. Although the district
* The United States has notified us that it will not be filing a brief in this appeal.
We have agreed to decide the case without oral argument because the appellant’s brief
and the record adequately present the facts and legal arguments, and oral argument
would not significantly aid the court. See F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-3136 Page 2
court addressed the merits of Uresti’s motion, we affirm because prisoners may not
request a sentence reduction more than once per retroactive amendment.
Uresti pleaded guilty in February 2011 to conspiracy to distribute 500 grams or
more of cocaine. 21 U.S.C. §§ 841(a)(1), 846 (2011). Because of a prior felony drug
conviction, Uresti faced a maximum prison sentence of life. Id. §§ 841(b)(1)(B), 851
(2011). The probation office submitted a presentence investigation report (PSR) setting a
total offense level of 40 and a criminal history category of VI for Uresti, who was a
career offender under U.S.S.G. § 4B1.1. Because the otherwise applicable guideline for
drug offenses, id. § 2D1.1, produced the higher offense level after several enhancements,
it replaced the offense level from the career-offender table. See id. § 4B1.1(b).
At sentencing, the court generally adopted the PSR but lowered Uresti’s total
offense level by two because the parties agreed that he should receive a lower
enhancement for his role in the offense. The court otherwise accepted the PSR’s
calculations, some over Uresti’s objection. With an offense level of 38 and a criminal
history category of VI, Uresti’s guideline range was 360 months to life in prison.
U.S.S.G. ch. 5, pt. A. (Without the criminal history category mandated by the career-
offender guideline, the range would have been 324 to 405 months.) The court sentenced
him below the range, to 240 months in prison, based on mitigating circumstances.
Uresti’s subsequent challenges to his sentence were unsuccessful. He filed a
direct appeal, but we granted counsel’s motion to withdraw and dismissed the appeal
as frivolous. See Anders v. California, 386 U.S. 738 (1967); United States v. Uresti,
476 F. App’x 80 (7th Cir. 2012). Uresti later moved for postconviction relief under
28 U.S.C. § 2255, but the district court concluded that his claims lacked merit. In its
ruling, the court reaffirmed that Uresti was a career offender while explaining that his
sentence also was below the guideline range that would have applied if he were not.
A year later, in November 2014, Uresti moved for a reduced sentence under
18 U.S.C. § 3582(c)(2) based on Amendment 782 to the Sentencing Guidelines, which
lowered the base offense levels under § 2D1.1 for certain drug offenses. See U.S.S.G.
supp. app. C., amend. 782 (eff. Nov. 1, 2014). The court denied Uresti’s motion, ruling
that he was not eligible for relief because his prison term was not “based on a
sentencing range that has subsequently been lowered by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2). Specifically, Amendment 782 had not affected the career-offender
guideline, which still yielded the same range of imprisonment that the court had
applied at sentencing. Irrespective of changes to the underlying drug guideline, under

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No. 23-3136 Page 3
§ 4B1.1, the offense level could not fall below 37 for a crime with a statutory maximum
of life imprisonment. See U.S.S.G. § 4B1.1(b)(1); U.S.S.G. ch. 5, pt. A (guideline range of
360 months to life imprisonment for offense level 37 and criminal history category VI).
Nearly eight years after this ruling, in September 2023, Uresti submitted another
request for a reduced sentence under 18 U.S.C. § 3582(c)(2) based on Amendment 782.
To show that his career-offender status should not affect his eligibility, he cited the
Illinois Supreme Court’s 2013 ruling that one of the predicate offenses for his career-
offender status was unconstitutional. See People v. Aguilar, 2 N.E.3d 321 (Ill. 2013). The
district court denied his motion for the same reason provided earlier: his guideline
range remained unchanged.
On appeal, Uresti reasserts that he is eligible for a sentence reduction under
§ 3582(c)(2) based on Amendment 782 and Aguilar. But motions under § 3582(c)(2) must
be based on an action by the Sentencing Commission lowering his sentencing range.
See Dillon v. United States, 560 U.S. 817, 825–26 (2010). Therefore, as the district court
explained, Amendment 782 does not offer relief to Uresti, whose guideline range as a
career offender remains 360 months to life imprisonment, the same range that was
applied at sentencing. And Aguilar is of no use to Uresti because it represents action by
a court, not the Sentencing Commission. To the extent that Uresti invokes Aguilar only
to demonstrate that he is no longer a career offender and can therefore benefit from the
change to § 2D1.1, a motion under § 3582(c)(2) is not the vehicle for an argument that he
was improperly deemed a career offender. See United States v. Stevenson, 749 F.3d 667,
669–70 (7th Cir. 2014) (when considering prisoner’s motion under § 3582(c)(2), “[t]he
sentencing court’s determination that [the prisoner] was a career offender … remains in
place despite the subsequent changes to [drug] guidelines”).
In any case, the district court was compelled to deny Uresti’s second request
under § 3582(c)(2) because prisoners may seek relief under that statute only once per
retroactive amendment to the Guidelines. As we have explained, once a district court
issues a decision on a prisoner’s motion under § 3582(c)(2), Federal Rule of Criminal
Procedure 35 applies and “curtails any further power of revision, unless the
Commission again changes the Guidelines and makes that change, too, retroactive.”
United States v. Beard, 745 F.3d 288, 292 (7th Cir. 2014) (quoting United States v. Redd,
630 F.3d 649, 651 (7th Cir. 2011)). Both of Uresti’s § 3582(c)(2) motions relied on
Amendment 782, and so Rule 35 required the denial of the successive motion.
AFFIRMED

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