UNITED STATES of America, Plaintiff-Appellee, v. Sylvester HICKS, Defendant-Appellant, 523 F. App'x 401

ORDER Sylvester Hicks appeals from the denial of his motion under 18 U.S.C. § 3582(c)(2) to reduce his prison sentence based on a retroactive decrease in the base offense levels for crack-cocaine offenses. But that change did not benefit Hicks because his imprisonment range was calculated under the career-offender guideline. We thus affirm the judgment. In 2007 Hicks pleaded guilty to one count of possessing crack with intent to distribute, 21 U.S.C. § 841(a)(1) (2006 & Supp. I 2007). The district court found that Hicks was accountable for 50 to 150 grams of crack, which at that time corresponded to a base offense level of 30 under the

Chapter 2 guideline presumptively applicable to violations of § 841(a)(1). See U.S.S.G. § 2Dl.l(e)(5) (2007). But his lengthy criminal history made Hicks a career offender, which meant instead a base offense level of 37, see 21 U.S.C. § 841 (b)(l)(A)(iii) (2006 & Supp. I 2007); U.S.S.G. § 4Bl.l(b)(A) (2007). After a 3-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(2007), Hicks’s total offense level of 34 and criminal history category of VI yielded a guidelines imprisonment range of 262 to 327 months. The district court imposed a sentence of 262 months.

In 2012 Hicks filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on amendments 748 and 750 to the guidelines, which together retroactively lowered the offense levels for most crack offenses. See U.S.S.G.App. C, Vol. Ill 374-85, 391-98 (2011). His appointed attorney moved to withdraw, explaining that Hicks was sentenced under the career-offender guideline, which had not been amended or otherwise affected by any amendment. The district court agreed, granted the attorney’s motion to withdraw, and denied Hicks’s § 3582(c)(2) motion. On appeal Hicks presents a very different contention.

As we understand his brief, Hicks now argues that he is eligible for a sentence reduction because, he asserts, the district court at his sentencing in 2007 failed to recognize its discretion to disagree with the imprisonment range that resulted from applying the career-offender guideline. But, even if the sentencing court did make that mistake, Hicks could not bring the claim in a motion under § 3582(c)(2), which concerns only post-sentencing amendments promulgated and made retroactive by the Sentencing Commission. See Dillon v.

United States, 560 U.S. 817, 130 S.Ct. 2683, 2694, 177 L.Ed.2d 271 (2010); United States v. Jackson, 573 F.3d 398, 400 (7th Cir.2009). The amendments did not change the career-offender guideline, which the district court used to calculate the imprisonment range. Because Hicks was not “sentenced based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” he was ineligible for a reduction in his sentence. 18 U.S.C. § 3582(c)(2); see United States v. Davis, 682 F.3d 596, 610 (7th Cir.2012); United States v. Griffin, 652 F.3d 793, 803 (7th Cir.2011); United States v.

Guyton, 636 F.3d 316, 318-19 (7th Cir.2011). AFFIRMED