United States of America v. Brian McKenzie

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 10, 2024
Decided August 5, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-2426
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN MCKENZIE,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:19-CR-00019(1)
John Robert Blakey,
Judge.
O R D E R
After Brian McKenzie was sentenced for two counts of carjacking and
brandishing a firearm, the U.S. Sentencing Commission enacted a retroactive
amendment to the Guidelines that would have reduced his criminal history category
and guidelines range. McKenzie now seeks relief under 28 U.S.C. § 2106, which
authorizes limited or general remands for resentencing. See United States v. Claybron,
88 F.4th 1226, 1229 (7th Cir. 2023) (collecting cases). Because McKenzie’s sentence was
below his amended guidelines range and he is ineligible for a sentence reduction under
18 U.S.C. § 3582(c)(2), we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

-- 1 of 5 --

No. 23-2426 Page 2
I
McKenzie committed two armed carjackings in Chicago’s southwestern suburbs
in October 2018. He stole the first car from a victim at gunpoint, and, while attempting
to evade law enforcement, crashed it. He also struck and injured a construction worker
who was working at the scene of the crash. McKenzie fled on foot, only then to
approach a second car, which he stole at gunpoint. A police officer tried to apprehend
McKenzie while he was stealing the second car, but McKenzie backed into the officer
with the car and knocked him over. McKenzie then ran over the officer’s leg and
escaped. He was later located and arrested.
A federal indictment then followed, charging McKenzie with two counts of
carjacking, 18 U.S.C. § 2119(1); one count of brandishing a firearm during and in
relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A); and one count of being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1). Pursuant to a plea agreement, he pleaded
guilty to both carjacking counts and to brandishing a firearm. In the Presentence
Investigation Report (PSR), a probation officer calculated an advisory guidelines range
of 262 to 327 months’ imprisonment on the carjacking counts based on a combined
adjusted offense level of 35 and a criminal history category of V. The criminal history
determination reflected a finding that McKenzie had eight criminal history points and
adding two more points under the then-effective version of U.S.S.G. § 4A1.1(d), because
he had committed the offenses while under a criminal justice sentence in a prior state
case. As for the brandishing-of-a-firearm count, the guidelines range was the seven-year
minimum prison term that Congress required be imposed consecutively to his sentence
on the carjacking counts. See 18 U.S.C. § 924(c)(1)(A)(ii), (D)(ii); U.S.S.G. § 2K2.4.
At McKenzie’s sentencing hearing in March 2023, the district court overruled
McKenzie’s objections to two adjustments to the offense level for the second carjacking
and adopted the guidelines calculations in the PSR. The court continued the sentencing
hearing to July 2023 to give the parties time to determine restitution.
In the meantime, in April 2023, the Sentencing Commission proposed an
amendment to § 4A1.1 of the Guidelines (“Amendment 821”) that would require
district courts to add only one point—instead of two—to the criminal history score of a
defendant like McKenzie who committed an offense while under a criminal justice
sentence (and had seven or more criminal history points). U.S.S.G. A MEND. 821 (U.S.
SENT ’ G C OMM’ N 2023). The Commission decided that “status points” should be
accounted for on a more limited basis, given research studies showing that “status
points” were not strongly predictive of future recidivism. See id. Of significance here,

-- 2 of 5 --

No. 23-2426 Page 3
the Commission also proposed an accompanying amendment to make Amendment 821
retroactive. Id. at A MEND. 825.
The proposed amendments remained pending when McKenzie’s sentencing
hearing resumed in July 2023. At the hearing, McKenzie did not mention them. The
district court weighed the 18 U.S.C. § 3553(a) factors and then imposed a below-
guidelines sentence of 180 months’ imprisonment to be served concurrently on each
carjacking count, and ten years’ imprisonment on the brandishing count to be served
consecutively to the carjacking sentence. The result was a total prison term of 300
months. In November 2023, the amendments became retroactively effective. See U.S.S.G.
§ 4A1.1(e).
II
On appeal, McKenzie argues that we should remand for resentencing under
§ 2106. He points to United States v. Claybron, 88 F.4th 1226 (7th Cir. 2023), where we
seemed to rely in part on § 2106 to remand for resentencing based on later retroactive
amendments to the Guidelines (Amendments 821 and 825) that lowered the defendant’s
criminal history category. McKenzie argues that the retroactive application of § 4A1.1(e)
would decrease his criminal history category from V to IV and lower his guidelines
range. With a criminal history category of IV and an offense level of 35, McKenzie’s
amended guidelines range for the carjacking counts would be 235 to 293 months’
imprisonment (rather than his guidelines range of 262 to 327 months’ imprisonment at
sentencing). In light of his lower amended guidelines range, McKenzie argues that we
should remand because, like in Claybron, further proceedings would be just under the
circumstances.
The government counters that remand under § 2106 would be unjust. According
to the government, McKenzie’s situation differs from Claybron’s in that he is ineligible
for relief under 18 U.S.C. § 3582(c)(2)—the statute that expressly authorizes district
courts to reduce a sentence after the enactment of a retroactive amendment to the
Guidelines. The government points out that § 3582(c)(2) prohibits district courts from
reducing the sentences of defendants, like McKenzie, whose sentences fall below a
guidelines range that has been recalculated to account for the retroactive amendment.
See § 1B1.10(b)(2)(A) (no relief for defendants with below-the-amended-guidelines
sentences); Dillon v. United States, 560 U.S. 817, 819 (2010) (policy statement in
§ 1B1.10(b) is binding on district courts). By contrast, Claybron’s sentence fell within the
amended guidelines range. See Claybron, 88 F.4th at 1230–31. Highlighting the interplay
between the statutes, the government maintains that McKenzie’s ineligibility for relief
under § 3582(c)(2) precludes relief under § 2106.

-- 3 of 5 --

No. 23-2426 Page 4
We begin § 3582(c)(2), where Congress provided that “in the case of a defendant
who has been sentenced to a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Commission … the court may reduce
the 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). When the
Sentencing Commission makes retroactive a guidelines amendment (like Amendment
821), § 3582(c)(2) “authorizes a district court to reduce an otherwise final sentence that is
based on the amended provision.” Dillon, 560 U.S. at 821.
In no way is relief under § 3582(c)(2) constitutionally compelled; to the contrary,
the provision “represents a congressional act of lenity intended to give prisoners the
benefit of later enacted adjustments to the judgments reflected in the Guidelines.” Id. at
828. Further, the availability of a sentence reduction under § 3582(c)(2) is limited—relief
is generally unavailable for a defendant like McKenzie whose original sentence fell
below the amended guidelines range. That is because any reduction must be “consistent
with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2). Under the relevant policy statement, district courts “shall not reduce the
defendant’s term of imprisonment … to a term that is less than the minimum of the
amended guideline range.” See U.S.S.G. § 1B1.10(b)(2)(A); Dillon, 560 U.S. at 822. The
Supreme Court held in Dillon that § 1B1.10(b) is binding on proceedings under
§ 3582(c)(2). 560 U.S. at 819.
Remand would give McKenzie an end-run around the specific avenue for
sentence reduction in response to a retroactive amendment to the Guidelines that
Congress established in § 3582(c)(2). McKenzie’s below-the-amended-guidelines
sentence disqualifies him from relief under § 3582(c)(2) and distinguishes this case from
Claybron, where relief under § 3582(c)(2) relief was available to the defendant whose
original sentence was not below the amended guidelines range. Claybron, 88 F.4th at
1229, 1231. Indeed, remand here would open the door for McKenzie to receive a
sentence even lower than his below-the-amended-guidelines sentence, an outcome that
§ 3582(c)(2) prohibits. See U.S.S.G. § 1B1.10(b)(2)(A); Dillon, 560 U.S. at 819.
McKenzie concedes that he is ineligible for relief under § 3582(c)(2) but argues
that the provision does not bear on our ability to grant relief under § 2106. He further
contends that the opportunity to receive a shorter sentence than would be allowed
under § 3582(c)(2) favors remand. McKenzie asserts that in Claybron we “rejected the

-- 4 of 5 --

No. 23-2426 Page 5
government’s insistence that the defendant pursue § 3582(c) after the appeal rather than
gaining § 2106 relief on appeal.”
But Claybron did not license such a broad use of § 2106. And given the factual
distinctions between this case and Claybron, McKenzie reads too much into Claybron. He
ignores that case’s key insight that there was “no difference” whether Claybron
pursued relief under § 3582(c)(2) or § 2106 because “the same relief would be available
to Claybron on either statutory path.” Id. at 1231 (emphasis added). Either path led to
the same result, and we decided that § 2106 presented an alternative avenue of no
independent legal significance. Id. (remand under § 2106 “promotes judicial economy.”)
Notably, Claybron did not require us to decide whether remand under § 2106 would
have been warranted if relief under § 3582(c)(2) had been unavailable.
Indeed, unlike Claybron, McKenzie seeks a result under § 2106 that is expressly
prohibited under § 3582(c)(2). Congress and the Sentencing Commission ruled out a
sentence reduction under § 3582(c)(2) for individuals like McKenzie whose sentences
were below the amended guidelines, see 18 U.S.C. § 3582(c)(2); U.S.S.G.
§ 1B1.10(b)(2)(A), and that limitation binds district courts when considering sentence
reductions, see Dillon, 560 U.S. at 819. McKenzie now asks us to circumvent that
limitation. In a different context involving another provision of 18 U.S.C. § 3582(c), we
rejected an attempt to create an “end-run” around Congress’s “clear and precise
limitation” regarding sentencing. See United States v. Thacker, 4 F.4th 569, 573–74
(7th Cir. 2021) (no sentencing reduction under 18 U.S.C. § 3582(c)(1)(A) based on change
to sentencing scheme in criminal statute that applies only prospectively). Remand here
would be unjust and imprudent because it would contravene the limitation on post-
amendment sentence reduction Congress expressly included in § 3582(c)(2).
AFFIRMED

-- 5 of 5 --