107 F3d 13 Belanger v. United States

107 F.3d 13

David M. BELANGER, Plaintiff-Appellant,
UNITED STATES of America, Defendant-Appellee.

No. 95-1218.

United States Court of Appeals, Seventh Circuit.

Submitted Jan. 13, 1997.*
Decided Jan. 31, 1997.

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Before CUDAHY, ESCHBACH and KANNE, Circuit Judges.


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David Belanger was convicted in 1990 of being a felon in possession of a firearm and possessing marijuana with intent to distribute. Based upon his prior convictions, he was found to be a career offender, assigned to offense level 24, and sentenced to concurrent terms of 120 months and 60 months imprisonment. Subsequently, he moved the district court, pursuant to 18 U.S.C. § 3582(c)(2), to resentence him in accordance with the amended Application Note 2 of U.S.S.G. § 4B1.1. The amendment (Amendment 506) directs courts to discount the enhanced levels of punishment associated with career offender status when calculating the "offense statutory maximum" to establish the defendant's base offense level. The amendment applies retroactively. See U.S.S.G. §§ 1B1.10(a) and (c). The district court held that the amended application note was invalid and denied the motion. Belanger appeals.


In United States v. Hernandez, 79 F.3d 584, 595 (7th Cir.1996), petition for cert. filed (U.S. Apr. 1, 1996) (No. 95-8469), petition for cert. filed (U.S. June 17, 1996) (No. 95-9335), this court held that the amended Application Note 2 is invalid because its effect of shortening drug offenders' prison terms conflicts with Congress's intent that repeat offenders serve sentences close to the maximum terms authorized for their offenses.1 The amendment therefore has no application in this circuit. Id. at 601. Belanger's case presents no issues different than those decided by Hernandez, and thus the judgment of the district court is AFFIRMED.


This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After an examination of the briefs and the record, we have concluded that oral argument is unnecessary; accordingly, the appeal is submitted on the briefs and the record. See Fed.R.App.P. 34(a); Cir.R. 34(f)


Cf. United States v. Labonte, 70 F.3d 1396 (1st Cir.1995), cert. granted, 116 S.Ct. 2545 (U.S. June 24, 1996) (No. 95-1726)