United States of America v. Tyler M. Horrell

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 27, 2012 *
Decided November 9, 2012
Before
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
Nos. 11‐3846 & 12‐1205
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
TYLER M. HORRELL,
Defendant‐Appellant.
Appeals from the United States District
Court for the Southern District of Illinois
No. 99 CR 40006
G. Patrick Murphy,
Judge.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* Pursuant to Seventh Circuit Internal Operating Procedure 6(b), these
consolidated appeals were submitted to the panel of judges that disposed of Horrell’s
prior appeals. See United States v. Horrell, No. 99‐3178, 2000 WL 701761 (7th Cir. May 26,
2000) (unpublished); United States v. Horrell, 381 F. App’x 587 (7th Cir. 2010) (non‐
precedential decision). Neither party has requested oral argument, see Fed. R. App. P.
34(a)(1) and Circuit Rule 34(f), and upon review of the briefs and the record and
consideration of the standards set forth in Fed. R. App. 34(a)(2), the panel has
determined that oral argument is unnecessary to the resolution of these appeals. The
appeals are therefore submitted on the briefs and the record.

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Nos. 11‐3846 & 12‐1205 Page 2
O R D E R
After the U.S. Sentencing Guidelines were amended retroactively to further
reduce the sentencing ranges for offenses involving crack cocaine, pursuant to the Fair
Sentencing Act of 2010, P.L. 111‐220, 124 Stat. 2372 (Aug. 3, 2010), see U.S.S.G. Supp. to
App. C, Vol. III 374‐385, 391‐98 (2011) Amendments 748, 750 & 759, Tyler M. Horrell
filed a motion pro se asking the district court to reduce his sentence. Based on prior
revisions to the Guidelines, the court had already reduced Horrell’s sentence from the
original prison term of 293 months we affirmed in Horrell’s first appeal, see United States
v. Horrell, No. 99‐3178, 2000 WL 701761 (7th Cir. May 26, 2000) (unpublished), to a term
of 210 months; and we had dismissed Horrell’s appeal of the reduced sentence as
frivolous, see United States v. Horrell, 381 F. App’x 587 (7th Cir. 2010) (non‐precedential
decision). The district court appointed counsel to represent Horrell in his quest for a
second reduction in his sentence, but when that counsel represented that he could find
no merit in Horrell’s motion, the court granted counsel leave to withdraw and denied
the motion. R. 182. After Horrell filed a notice of appeal, he asked the district court to
reconsider its decision to deny his motion to reduce his sentence; the district court also
denied that request. R. 190. We affirm the denial of Horrell’s motion to reduce his
sentence.
The district court properly denied Horrell’s latest motion to reduce his sentence.
The court’s power to modify the sentence was confined by the terms of 18 U.S.C.
§ 3582(c)(2), which authorizes the court to revisit a sentence when that sentence was the
product of “a sentencing range that has been subsequently lowered by the Sentencing
Commission . . . if such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” As the plain terms of both the statute and the
Sentencing Commission’s pertinent policy statement suggest, in order for a defendant
to be eligible for a sentence reduction pursuant to section 3582(c)(2), two conditions
must be met: (1) the Sentencing Commission’s amendment to the relevant Guideline(s)
must have been given retroactive effect; and (2) the amendment must lower the
defendant’s applicable Guidelines sentencing range. U.S.S.G. § 1B1.10(a); see United
States v. Jackson, 573 F.3d 398, 399 (7th Cir. 2009).
The first of these conditions has been met in Horrell’s case. Amendment 750,
which alters the offense levels set forth in section 2D1.1 of the Sentencing Guidelines, is
among the amendments identified in section 1B1.10(c) as having retroactive effect.
See, e.g., Lawuary v. United States, 669 F.3d 864, 867 (7th Cir. 2012).

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Nos. 11‐3846 & 12‐1205 Page 3
However, the second condition has not been satisfied. In assessing the potential
effect of an amendment on a particular defendant, a court must substitute the revised
guideline in place of the original version and then re‐calculate the defendant’s offense
level leaving all other Guidelines calculations in place. § 1B1.10(b)(1); Dillon v. United
States, 130 S. Ct. 2683, 2691‐92, 2694 (2010). As revised by Amendment 750, section
2D1.1 of the Guidelines still specifies a base offense level of 32 for Horrell given the total
of 283.4 grams of crack cocaine for which the district court found him responsible at his
original sentencing. See § 2D1.1(c)(4) (specifying offense level of 32 for offenses
involving “[a]t least 280 [grams] but less than 840 [grams] of Cocaine Base”). Two
levels would again be added pursuant to section 3C1.1 for Horrell’s attempt to obstruct
justice by soliciting perjury from his aunt at his original sentencing. Horrell’s adjusted
offense level would thus total 34, just as it was in 2009, when the district court reduced
his sentence from 293 months to 210 months; likewise, when coupled with his criminal
history category of III, his sentencing range would remain unchanged at 188‐235
months. Even Horrell, in a pro se supplement he filed below in support of his request
to reduce his sentence, conceded that his Guidelines range remained unchanged by the
most recent amendments. R. 183 at 1‐2. He is therefore ineligible for a further
sentencing reduction pursuant to section 3582(c)(2). See United States v. Taylor, 627 F.3d
674, 676 (7th Cir. 2010) (“Relief under the statute is not available when a retroactive
amendment ‘does not have the effect of lowering the defendant’s applicable guidelines
range.’”) (quoting § 1B1.10(a)(2)(B)); Jackson, 573 F.3d at 400.
Horrell contends that Amendment 750 would lower his sentencing range if the
district court were now to reduce (as he believes it should) the relevant quantity of
crack cocaine for which it held him accountable at the time of his original sentencing; he
also argues that the court should revisit and eliminate the two‐point enhancement he
received for attempted obstruction of justice. But a sentencing modification proceeding
is not a de novo resentencing. U.S.S.G. § 1B1.10(a)(3); Dillon, 130 S. Ct. at 2694. And as
we have said, in determining whether a defendant is eligible for a reduction in his
sentence in light of a retroactive amendment, a court is limited to factoring the revised
guideline into the original sentencing calculations; the court “shall leave all other
guideline application decisions unaffected.” § 1B1.10(b)(1); id. comment (n.2); see Dillon,
130 S. Ct. at 2694; Jackson, 573 F.3d at 400; United States v. Neal, 611 F.3d 399, 401 (7th Cir.
2010).
Horrell’s ongoing (and commendable) rehabilitation, which he also mentions in
his briefs, would be a relevant factor for the district court to consider in exercising its

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Nos. 11‐3846 & 12‐1205 Page 4
discretion to modify Horrell’s sentence if he were eligible for a reduction under section
3582(c)(2). § 1B1.10, comment. (n. 1(B)(iii)); e.g., Neal, 611 F.3d at 401 (“That a judge may
consider a personʹs behavior in prison no one doubts.”). But it does not establish his
eligibility for a modification in his sentence. See § 1B1.10(b)(1) & comment. (nn.1(A) &
2).
We noted earlier that after the district court denied Horrell’s section 3582(c)(2)
motion and Horrell filed a notice of appeal, Horrell filed a motion to reconsider, which
the district court denied and which prompted Horrell to file a second notice of appeal.
Horrell’s first notice of appeal divested the court of jurisdiction to entertain his motion
to reconsider. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S. Ct. 400,
402 (1982) (per curiam); see also, e.g., United States v. Ali, 619 F.3d 713, 722 (7th Cir. 2010).
The arguments that Horrell raised in that motion – including his contention that
anything other than a one‐to‐one sentencing ratio between crack and powder cocaine is
unconstitutional – are therefore not before us. For what it is worth, however, we do
note that such arguments have not met with success in this court. See, e.g., United States
v. Moore, 644 F.3d 553, 556‐58 (7th Cir. 2011) (rejecting substantive due process and
equal protection challenges to heavier penalties for offenses involving crack cocaine),
cert. denied, 132 S. Ct. 1613 (2012).
AFFIRMED.

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