Argued June 4, 2014
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 CR 516 - Virginia M. Kendall, Judge.
For United States of America, Plaintiff - Appellee: Debra Riggs Bonamici, Attorney, Sheri H. Mecklenburg, Attorney, Office of The United States Attorney, Chicago, IL.
For Willie Diggs, Defendant - Appellant: Jerry D. Bischoff, Attorney, Law Office of Jerry Bischoff, Chicago, IL; Judith Pola Miller, Attorney, Mandel Legal Aid Clinic, Chicago, IL.
Before WOOD, Chief Judge and CUDAHY, and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge.
This case deals with the constitutional effect of the U.S. Sentencing Commission's amendment to § 1B1.10, which is a policy statement essentially prohibiting courts from applying retroactive amendments to the guidelines to reduce the sentence of any defendant which was already below the minimum of the amended guidelines. The district court properly applied § 1B1.10 to Diggs' case, found that this does not offend the ex post facto clause and finally, found that the commission did not exceed its delegated authority in its attempt to revise this policy. Accordingly, we affirm.
Willie Diggs pleaded guilty, with plea agreement, to possession with intent to distribute 50 grams of crack cocaine and 500 grams of powder cocaine. At the plea hearing Diggs also admitted that he supplied wholesale quantities to his co-defendants.
At sentencing, the district court accepted the findings of the Pre-Sentencing Report, which recommended that Diggs be held accountable for 5.7 kilos of crack cocaine and 2 kilos of powder cocaine, resulting in a base offense level of 38. The court also applied two two-level enhancements for using a dangerous weapon and having a leadership role in the conspiracy. Neither of these enhancements was challenged. In addition, Diggs sought cooperation credit for assistance he gave the government in apprehending his co-conspirators. However, the government opposed this motion on the basis that Diggs allegedly tipped off his co-conspirators, negating the validity of any information he provided. Ultimately, the court determined that Diggs' cooperation was not fruitful and did not therefore merit a favorable
adjustment in his sentencing guidelines, but the court did consider Diggs' co-operation as a mitigating factor when setting the sentence.
According to the advisory guidelines, Diggs' sentence was calculated to be 360 months to life. However, the court was impressed by the change Diggs had shown since being incarcerated and was moved by Diggs' testimony regarding the regret he felt for his crimes and his hopes for the future. As a result, the court sentenced Diggs to 282 months--78 months below the low end of the advisory guidelines.
After Diggs was sentenced, Amendment 750 took effect, which retroactively lowered the base offense level for possession with intent to distribute crack cocaine. Under the retroactive amendment, Diggs' advisory guideline was 292-365 months. Diggs then moved to reduce his sentence, arguing that the original 78 month downward variance he received should be automatically applied to the retroactive guidelines resulting in a new sentence of 214 months. The court rejected Diggs' motion on the basis that U.S.S.G. § 1B1.10 prohibits a court from reducing a defendant's sentence to a term less than the minimum of the amended guideline range unless the original sentence had been reduced in response to a government motion for substantial assistance. On appeal the main thrust of Diggs' argument is that the ...