United States of America v. Kendrick D. Latham

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 18, 2024*
Decided December 20, 2024
Before
ILANA DIAMOND ROVNER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 24-1826
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENDRICK D. LATHAM,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 01-cr-40047-SMY-2
Staci M. Yandle,
Judge.
O R D E R
Kendrick Latham, a federal prisoner, appeals the denial of his motion for a
reduced sentence under 18 U.S.C. § 3582(c)(2) based on a recent amendment to the
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. 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NONPRECEDENTIAL DISPOSITION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. 24-1826 Page 2
Sentencing Guidelines. The district court denied the motion because the amendment
would not lower Latham’s sentencing range. We affirm.
Latham was convicted by a jury in 2002 of conspiracy to distribute 50 grams or
more of cocaine, 21 U.S.C. §§ 841(a)(1) and 846, and possession with intent to distribute
five grams or more of cocaine, id. § 841(a)(1). Judge Gilbert, adopting the Probation
Office’s position in Latham’s presentence investigation report, calculated a guidelines
range of 360 months to life (based on a total offense level of 42 and a criminal history
category of IV) under the 2001 Sentencing Guidelines. As relevant to this appeal,
Latham’s criminal history calculations included six criminal history points for prior
offenses, plus two points because he committed the offense while on probation, U.S.S.G.
§ 4A1.1(d) (2001), and one recency point because Latham committed the offense less
than two years after he was released from custody for a Missouri theft conviction, id.
§ 4A1.1(e) (2001). Judge Gilbert sentenced Latham to 480 months’ imprisonment, but he
later reduced Latham’s sentence on two occasions. In 2017, Judge Gilbert reduced
Latham’s sentence to 360 months under Amendment 782. See id., Supplement to
Appendix C, 71 (2014)(Amendment 782); see also 18 U.S.C. § 3582(c)(2). And in 2020,
Judge Gilbert reduced Latham’s sentence under the First Step Act of 2018, to 240
months on the conspiracy conviction while retaining Latham’s 360-month sentence for
the possession with intent to distribute conviction. See Pub. L. No. 115-391, 132 Stat.
5194.
In 2024, Latham moved under § 3852(c)(2) to reduce his sentence based on a new
amendment to the Guidelines that lowered his criminal history category. He observed
that Amendment 821 (the relevant portion of which applies retroactively, see U.S.S.G.
§ 1B1.10(d) (2023)), removed two criminal history points from the criminal history score
for defendants—like him—who committed their offense while serving another
sentence. Compare id. § 4A1.1(d) (2001), with id. § 4A1.1(e) (2023). He also sought the
removal of the recency point added to his criminal history score because, in his view, he
was not on probation or parole when he committed the offense in 2001. Judge Yandle,
to whom the case had been reassigned, determined that Latham was ineligible for a
sentence reduction. Without addressing his argument regarding the recency point, she
explained that lowering his criminal history score from nine to seven under
Amendment 821 would not lower his sentencing range, and thus, she denied his
motion.
On appeal, Latham argues that Judge Yandle erred by disregarding his argument
about removing the recency point. But a charge of legal error in a sentence must be

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No. 24-1826 Page 3
made by direct appeal or motion under 28 U.S.C § 2255, not by motion under
§ 3582(c)(2). See United States v. Von Vader, 58 F.4th 369, 371 (7th Cir. 2023). And even if
Judge Yandle considered his recency point argument, it would not have affected her
decision because the amendment that eliminated recency points, see Supplement to
Appendix C, 354–56 (2010)(Amendment 742), was not made retroactive, see U.S.S.G
§ 1B1.10(c) (2010).
Regardless, the district court correctly denied Latham’s motion because
Amendment 821 does not lower his sentencing range under the Guidelines. A court
may reduce a defendant’s sentence only if it was “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
Even if Amendment 821 reduced Latham’s criminal history score from nine to seven,
his criminal history category would remain IV and his sentencing range unchanged. See
U.S.S.G. § 4A1.1(e) (2023); id. § 5A. Because Latham’s sentencing range has not been
lowered, he is ineligible for relief under § 3582(c)(2). See Dillon v. United States, 560 U.S.
817, 826 (2010).
AFFIRMED

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