             Case: 12-12450    Date Filed: 04/15/2013   Page: 1 of 5


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-12450
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 4:10-cr-00016-HLM-WEJ-7



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

TOMMY MORGAN,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                                (April 15, 2013)

Before CARNES, HULL, and JORDAN, Circuit Judges.

PER CURIAM:

      Tommy Morgan appeals the district court’s order granting the government’s

motion to reduce his sentence under Federal Rule of Criminal Procedure 35(b)
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based upon substantial assistance. On appeal, he argues that the district court

misapplied Rule 35(b) by failing to consider factors other than his substantial

assistance in reducing his sentence.

      Based on the substantial assistance Morgan provided, the government

moved for a sentence reduction under 35(b) and recommended that the court

reduce Morgan’s original sentence of 120 months imprisonment to 102 months.

Morgan argued that his assistance warranted a greater reduction and that the court

should consider non-assistance factors in deciding whether to order a greater

reduction. The court found that Morgan had provided substantial assistance and

granted the government’s motion, but it declined to consider non-assistance

factors. The court reduced Morgan’s sentence to 84 months imprisonment. We

review de novo the district court’s application of law to sentencing. United States

v. Manella, 86 F.3d 201, 203 (11th Cir. 1996).

      Upon the government’s motion, a district court may reduce a sentence “if the

defendant, after sentencing, provided substantial assistance in investigating or

prosecuting another person.” Fed. R. Crim. P. 35(b)(1) (2012). In Manella we

held that “the only factor that may militate in favor of a Rule 35(b) reduction is the

defendant’s substantial assistance.” 86 F.2d at 204. Morgan acknowledges that

Manella is binding case law but contends that it should be reconsidered in light of




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the intervening amendments to Rule 35(b) and the Supreme Court’s recent decision

in Pepper v. United States, — U.S. —, 131 S.Ct. 1229 (2011).

      Under the prior precedent rule, we are bound to follow a prior panel decision

unless it has been overruled by this Court en banc or “has been substantially

undermined or overruled by either a change in statutory law or Supreme Court

jurisprudence or if it is in conflict with existing Supreme Court precedent.” United

States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999); see also United States v.

Marte, 356 F.3d 1336, 1344 (11th Cir. 2004) (“We are authorized to depart from a

prior panel decision based upon an intervening Supreme Court decision only if that

decision actually overruled or conflicted with it.”) (quotation marks omitted).

      Morgan relies on two sets of revisions that have been made to Rule 35 since

Manella. In 2002 the language of Rule 35 was amended for “stylistic” purposes.

Fed. R. Crim. P. 35 Advisory Committee’s Note, 2002 Amendments. The

language of Rule 35(b) was changed from permitting the court to lower a sentence

“to reflect” substantial assistance to permitting the court to reduce a sentence “if”

the defendant provided substantial assistance. See United States v. Tadio, 663

F.3d 1042, 1049 (9th Cir. 2011). In 2007 Rule 35(b) was amended to conform to

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). Fed. R. Crim. P. 35

Advisory Committee’s Note, 2007 Amendments. Subdivision 35(b)(1)(B), which




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required that a sentence reduction under Rule 35(b) was in accordance with the

Sentencing Commission’s guidelines, was deleted. Id.

      In Tadio, the case on which Morgan relies, the Ninth Circuit held that “[t]he

most natural reading of the current language [of Rule 35(b)] is . . . that non-

assistance factors may be considered symmetrically to allow a reduction that is

either more or less than the reduction that the assistance, considered alone, would

warrant.” Tadio, 663 F.3d at 1050. The court also concluded that the 2007

amendments “anticipated that district courts would enjoy greater latitude to tailor

sentence reductions in light of other statutory concerns than substantial assistance

considered alone.” Id. at 1051 (quotation marks omitted). Notably, the court was

deciding for the first time whether non-assistance factors could justify a greater

sentence reduction under Rule 35(b), not whether Rule 35(b)’s amendments

undermined an earlier decision limiting the use of non-assistance factors. Id. at

1051–52.

      Even if we were persuaded by the Ninth Circuit’s reasoning, we are still

bound by our prior precedent rule to follow Manella. The 2002 amendments,

which were merely stylistic, and the 2007 amendments, which were written to

conform Rule 35(b) to Booker, have not substantially undermined or overruled

Manella.




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      Pepper, decided by the Supreme Court after Manella, also does not overrule

Manella. Pepper held that factors such as a defendant’s rehabilitation can be

considered “when a defendant’s sentence has been set aside on appeal and his case

remanded for resentencing.” 131 S.Ct. at 1241. Pepper did not address what

factors could be considered when granting a sentence reduction under a Rule 35(b).

      In light of our decision in Manella, the district court did not err by declining

to consider non-assistance factors in deciding Morgan’s sentence reduction under

Rule 35(b).

      AFFIRMED.




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