                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2002

USA v. McBride
Precedential or Non-Precedential:

Docket 1-1616




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"USA v. McBride" (2002). 2002 Decisions. Paper 169.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/169


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL

       Filed March 13, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1616

UNITED STATES OF AMERICA

v.

OMAR MCBRIDE
a/k/a
LITTLE O

Omar McBride,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 92-cr-00671-10
District Judge: The Honorable Lowell A. Reed, Jr.

Submitted Under Third Circuit LAR 34.1(a)
February 5, 2002

Before: BECKER, Chief Judge, McKEE, and
BARRY, Circuit Judges

(Filed: March 13, 2002)
       Jeremy H.G. Ibrahim, Esq.
       121 South Broad Street
       The North American Building
       Philadelphia, PA 19107

       Attorney for Appellant

       Joseph T. Labrum, III, Esq.
       Assistant U.S. Attorney
       Office of the United States Attorney
       615 Chestnut Street
       Philadelphia, PA 19106

       Attorney for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

I.

In November, 1992, a federal grand jury in the Eastern
District of Pennsylvania returned an indictment charging
twenty defendants, including Omar McBride, with over
eighty counts of drug trafficking, violent crime in aid of
racketeering, and firearms offenses. On June 23, 1993,
each of the eight defendants who went to trial was
convicted on one or more counts of the forty counts which
went to the jury. McBride was convicted for his
membership in a conspiracy, known as "The Zulu Nation,"
to distribute and to possess with intent to distribute crack
cocaine, in violation of 21 U.S.C. S 846.

At sentencing, the District Court attributed a total weight
of 49.4 kilograms of crack cocaine to the conspiracy and
27.5 kilograms of that amount to McBride. Accordingly,
McBride's offense level was set at 42. U.S.S.G.S 2D1.1(c)
(1993). This offense level was enhanced by two levels for
McBride's possession of a firearm. S 2D1.1(b)(1). With a
total offense level thus set at 44 and a criminal history
category of III, McBride was sentenced to life in prison. We
affirmed the judgment of sentence in an unpublished

                                2
opinion. United States v. McBride, 74 F.3d 1229 (1995)
(table).

II.

On September 19, 1997, McBride moved for a reduction
of sentence pursuant to 18 U.S.C. S 3582(c)(2). The motion
was based on Amendment 505 to the Sentencing
Guidelines, an amendment which became effective on
November 1, 1994 and which, as relevant here, deleted
offense levels 38, 40, and 42 of the Drug Quantity Table in
U.S.S.G. S 2D1.1(c) and inserted a revised level 38 as the
upper limit of the Table. U.S. Sentencing Guidelines
Manual, App. C, Vol. 1 (1998). The Sentencing Commission
explained that, absent the extraordinary case, more than
level 38 is not required to ensure adequate punishment
given that organizers, leaders, managers, and supervisors
will receive a four, three, or two level enhancement for their
role in the offense and a two level enhancement will be
received by any participant who possessed a dangerous
weapon in the offense.

In a Memorandum Opinion dated October 26, 2000, the
District Court agreed that retroactive application of
Amendment 505 would be available to McBride and that
the guideline imprisonment range would be recomputed
after giving him the benefit of the level 38 cap and adding,
as before, the two level enhancement of possession of a
firearm. Certainly, then, to the extent that McBride had
sought consideration of a reduction of sentence under 18
U.S.C. S 3582(c)(2), his motion was granted. The Court
scheduled a limited sentencing hearing, ordered an updated
presentence report, and appointed counsel to represent
McBride.

On January 5, 2001, the sentence hearing commenced.
McBride asked that, aside from any benefit he might receive
as a result of the retroactive amendment, he be resentenced
in accordance with Apprendi v. New Jersey, 530 U.S. 466
(2000), and the hearing was adjourned in order that that
issue could be briefed. Apprendi, as by now is surely well
known, held that "[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the

                               3
prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Id. at 490. As
argued, and as briefed, McBride's position was that
Apprendi had by then become "the law of the land" and
because the jury had not found a specific drug quantity
beyond a reasonable doubt, he should be resentenced
within the statutory maximum for 21 U.S.C. S 846, "the
object of said conspiracy being 21 U.S.C. S 841(a)(1),
without regard to quantity." Supp. App. 31. Applying
Apprendi, he argued, would result in a maximum sentence
of twenty years under 21 U.S.C. S 841(b)(1)(C) rather than
a sentence within the expected guideline imprisonment
range, as recomputed, of 360 months to life imprisonment.

The District Court determined that even if Apprendi could
be applied retroactively, it would not be applied at
McBride's resentencing because that resentencing was
circumscribed by the nature of the motion before the Court,
which was simply a motion under 18 U.S.C. S 3582(c)(2) for
a reduction of sentence based on a change in the
Guidelines. Accordingly, the Court only gave McBride the
benefit of that change, pegging the base offense level at 38,
and resentenced him to 400 months imprisonment.

McBride has appealed. We have jurisdiction under 28
U.S.C. S 1291 and 18 U.S.C. S 3742(a) and will affirm.

 III.

McBride's appeal turns on his challenge to the scope of
the resentencing hearing. He argues that the District Court
erred in restricting the scope of that hearing to the benefit,
if any, he would receive by virtue of the retroactive
amendment to S 2D1.1 with its new upper limit on the base
offense level. Rather, the argument goes, the scope of the
hearing should have encompassed Apprendi and the
substantial benefit the application of Apprendi would
assuredly have afforded him. We review de novo the District
Court's determination to the contrary. United States v.
Yeaman, 194 F.3d 442, 456 (3d Cir. 1999).

McBride moved for a reduction of sentence pursuant to
18 U.S.C. S 3582(c)(2) seeking relief based upon
Amendment 505. S (c)(2) provides:

                               4
       (c) The court may not modify a term of imprisonment
       once it has been imposed except that --

       . . .

       (2) in the case of a defendant who has been sentenced
       to a term of imprisonment based on a sentencing range
       that has subsequently been lowered by the Sentencing
       Commission pursuant to 28 U.S.C. 994(o) . . . the
       court may reduce the term of imprisonment, after
       considering the factors set forth in section 3553(a) to
       the extent that they are applicable, if such a reduction
       is consistent with applicable policy statements issued
       by the Sentencing Commission.

The Commission's applicable policy statement isS 1B1.10,
which explicitly makes Amendment 505 retroactive, stating,
as relevant here:

       Reduction in Term of Imprisonment as a Result of
       Amended Guideline Range (Policy Statement)

       (a) Where a defendant is serving a term of
       imprisonment, and the guideline range applicable to
       that defendant has subsequently been lowered as a
       result of an amendment to the Guidelines Manual
       listed in subsection (c) below, a reduction in the
       defendant's term of imprisonment is authorized under
       18 U.S.C. S 2(c)(2).

       . . .

       (c) Amendments covered by this policy statement
       [include Amendment #]505. . . .

Where a reduction in a term of imprisonment is
authorized by virtue of an amendment explicitly made
retroactive, S 1B1.10(b) specifies what a court should
consider when determining if a reduction is warranted and,
if so, the extent of that reduction, to wit:

       (b) In determining whether, and to what extent, a
       reduction in the term of imprisonment is warranted for
       a defendant eligible for consideration under 18 U.S.C.
       S 3582(c)(2), the court should consider the term of
       imprisonment that it would have imposed had the
       amendment(s) to the guidelines listed in subsection (c)

                                5
       been in effect at the time the defendant was sentenced
       . . .

The commentary to S 1B1.10 unambiguously emphasizes
the limited nature of what may be considered:

       In determining the amended guideline range under
       subsection (b), the court shall substitute only the
       amendments listed in subsection (c) for the
       corresponding guideline provisions that were applied
       when the defendant was sentenced. All other guideline
       application decisions remain unaffected.

comment. (n.2). It is, thus, clear that only the retroactive
amendment is to be considered at a resentencing under
S 3582 and the applicability of that retroactive amendment
must be determined in light of the circumstances existent
at the time sentence was originally imposed. In other
words, the retroactive amendment merely replaces the
provision it amended and, thereafter, the Guidelines in
effect at the time of the original sentence are applied.

Wholly aside from the fact that there was no Apprendi at
the time of the original sentencing, constraining a court's
consideration to the retroactive amendment at issue is
consistent with the focused nature of a proceeding under
S 3582. See United States v. Cothran, 106 F.3d 1560, 1562
(11th Cir. 1997) (holding that S 3582(c)(2) does not
contemplate a full de novo resentencing); United States v.
Torres, 99 F.3d 360, 362-63 & n.3 (10th Cir. 1996) (holding
that treating a resentencing under S 3582 as a de novo
resentencing would negate the limit on retroactivity found
in S 1B1.10). Indeed, we, too, have distinguished between a
"full resentencing" and a reduction of sentence under 18
U.S.C. S 3582(c). United States v. Faulks , 201 F.3d 208,
210 (3d Cir. 2000).

While, of course, Apprendi is being regularly invoked by
defendants in various settings with varying degrees of
success, we have not until now decided in a published
opinion whether it would afford relief when a modification
of sentence is sought under 18 U.S.C. S 3582(c)(2). See
United States v. Nixon, No. 01-3128 at 4 (3d Cir. Feb. 20,
2002) (unpub.). We hold that it would not, as have those
Courts of Appeals that have considered this issue.

                                6
United States v. Smith, 241 F.3d 546 (7th Cir. 2001), is
remarkably similar to the case before us, with the Seventh
Circuit reaching the same conclusion we reach. Smith filed
a motion for resentencing under S 3582(c), seeking a
reduction in sentence based on a retroactive change in the
Guidelines. The District Court agreed that a reduction was
appropriate and reduced his sentence from life
imprisonment to 405 months. But, as the Seventh Circuit
put it, "Smith was not happy with this change, even though
it [was] the one specified by the amended guideline." Id. at
547. Smith asked the District Court to reduce his sentence
to 240 months because the jury had not determined the
amount of crack cocaine in which he had dealt and, under
21 U.S.C. S 841(b)(1)(C), 240 months was the maximum
sentence which could be imposed. Neither the District
Court nor the Seventh Circuit was persuaded, but after
Apprendi was issued, the Supreme Court remanded Smith's
case to the Seventh Circuit for further consideration.

On remand, the Seventh Circuit rejected the Apprendi
claim.

       Smith did not raise this issue in 1992, when it would
       have been possible to submit the question to a jury, so
       "plain error" would be the standard if this were a direct
       appeal. But it is not. . . . Smith's post-judgment request
       for resentencing rested on a change in the Sentencing
       Guidelines. Only at his resentencing under the
       amended guideline did Smith first raise the contention
       that the jury should have been told to determine
       whether the conspiracy dealt in 50,5, or less than 5,
       grams of crack cocaine. That was a new issue, one not
       authorized by S 3582(c), for it is unrelated to any
       change in the Sentencing Guidelines.

241 F.3d at 548.1 In a case, coincidentally, of the same
_________________________________________________________________

1. The Seventh Circuit described Smith's Apprendi claim as "effectively"
a collateral attack on his sentence, usually raised by motion under 28
U.S.C. S 2255. Although the Court discussed the cause and prejudice
Smith was required to show to obtain collateral relief, and found both
wanting, it also found it "by no means clear" that Apprendi would apply
in the first place. Id. at 549. It pointed out that the Supreme Court had
not held that Apprendi is retroactively applicable on collateral attack.
We

                               7
name, the Fourth Circuit, describing a resentencing under

S 3582(c)(2) as "merely a form of limited remand," agreed
with the Seventh Circuit that an argument that the
defendant's sentence violated Apprendi was not authorized
by S 3582(c) because it was unrelated to any change in the

Guidelines. United States v. Smith, No. 00-4181, 2001 WL
427790 (4th Cir. Apr. 26, 2001). See also United States v.
Bacote, No. 00-1622, 2001 WL 393705 (2d Cir. Apr. 18,

2001).2

The District Court determined that McBride's Apprendi
argument was independent of and unrelated to any change
in the Guidelines and was, therefore, outside the scope of
a sentence modification under S 3582. Given the limited
nature of the S 2 proceeding, and given the constraints of
S 1B1.10, p.s., we agree.

       IV.

The order of the District Court will be affirmed.

________________________________________________________________

have held that the new rule in Apprendi was not retroactive to cases on
collateral review. In re: Turner, 267 F.3d 225 (3d Cir. 2001). So, too,
now
has the Seventh Circuit in a case decided after Smith, United States v.
Sanders, 247 F.3d 139 (4th Cir. 2001), as has each Court of Appeals to
have considered the issue.

2. See also United States v. Paul, Crim. A. 96-049, 2001 WL 883130
(E.D. La. July 26, 2001) (rejecting Apprendi claim as "clear[ly]" and
"unambiguous[ly]" inappropriate for consideration under S 3582, based
on that statute's language); United States v. Griffin, No. CR. A. 93-491,
2001 WL 540997 (E.D. Pa. May 21, 2001) ("Apprendi challenge may not
be brought pursuant to 18 U.S.C. S 3582(c)(2) because it does not relate
to a change in the Sentencing Guidelines by the Sentencing
Commission"); United States v. Morgan, Crim. 92-665-1, 2000 WL
1368028 (E.D. Pa. Sept. 13, 2000) (because "Apprendi did not directly
address the federal sentencing guideline issues," S 3582 motion was
inapplicable).

                                8
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               9
