USA v. Simon Lundy, Sr., No. 08-3165 (7th Cir. 2009)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted February 18, 2009* Decided February 20, 2009 Before WILLIAM J. BAUER, Circuit Judge KENNETH F. RIPPLE, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 08 3165 UNITED STATES OF AMERICA, Plaintiff Appellee, v. SIMON LUNDY, Defendant Appellant. Appeal from the United States District Court for the Central District of Illinois. No. 03 10064 001 Michael P. McCuskey, Chief Judge. O R D E R Simon Lundy pleaded guilty to conspiring to distribute cocaine, see 21 U.S.C. § 846, and the district court sentenced him to 188 months imprisonment, the bottom of the guidelines range. His sentence reflected the district court s finding that he was responsible for both powder and crack cocaine. After the sentencing guidelines were amended to reduce the offense levels for crack cocaine crimes, U.S.S.G. App. C, Supp. 2007, amend. 706, * After examining the briefs and the records, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P. 34(a)(2). No. 08 3165 Page 2 Mr. Lundy with the assistance of counsel successfully petitioned the district court to resentence him to the bottom of the recalculated guidelines range, 151 months. See 18 U.S.C. § 3582(c)(2), U.S.S.G. § 1B1.10(a). Mr. Lundy now appeals his 151 month sentence, contending that his counsel s performance in the § 3582 proceedings was deficient. He submits that his attorney should have challenged the constitutionality of the advisory guidelines system established by United States v. Booker, 543 U.S. 220 (2005), and relitigated the drug quantities and type. But we need not address that question because, as we have recently reaffirmed, there is no right to counsel in § 3582(c)(2) proceedings. United States v. Forman, No. 08 2177, 2009 WL 140502, at *3 (7th Cir. Jan. 22, 2009); see also United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999), cert denied, 528 U.S. 1023 (1999); United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United States v. Townsend, 98 F.3d 510, 512 13 (9th Cir. 1996); United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462, 465 (2nd Cir. 1995). And where there is no right to counsel, there is surely no right to effective counsel. See Anderson v. Cowan, 227 F.3d 893, 901 (7th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991)). Accordingly, we AFFIRM Mr. Lundy s sentence.
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