United States v. Diggs, No. 13-2718 (7th Cir. 2014)Annotate this Case
Diggs pleaded guilty to possession with intent to distribute 50+ grams of crack cocaine and 500+ grams of powder cocaine; he admitted that he supplied wholesale quantities to co-defendants. The district court accepted recommendation that Diggs be held accountable for 5.7 kilos of crack cocaine and 2 kilos of powder cocaine and applied two two-level enhancements for using a dangerous weapon and having a leadership role. Neither was challenged. The government opposed cooperation credit for assistance in apprehending co-conspirators because he allegedly tipped off his co-conspirators. The court determined that Diggs’ cooperation did not merit an adjustment, but did consider co-operation as a mitigating factor when setting the sentence. Under advisory guidelines, Diggs’ sentence was 360 months to life. Impressed by the change Diggs had shown while incarcerated and moved by Diggs’ testimony, the court sentenced Diggs to 282 months. After sentencing, Amendment 750 took effect, retroactively lowering the base offense level for possession with intent to distribute crack cocaine, so that his guideline was 292–365 months. Diggs argued that the original 78 month downward variance should apply to the retroactive guidelines, for a new sentence of 214 months. The court rejected the motion, holding that USSG 1B1.10 prohibits a court from reducing a 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. The Seventh Circuit affirmed. The district court properly applied section 1B1.10, which does not offend the ex post facto clause. The commission did not exceed its authority in its attempt to revise this policy.