BLD-301                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-2789
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                     KIN YAN TAM, also known as LEUNG GOR

                                  Kin Yan Tam,
                                       Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           (D.C. Criminal No. 98-cr-00550)
                     District Judge: Honorable William H. Yohn
                     ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  September 30, 2010

           Before: RENDELL, CHAGARES and VANASKIE, Circuit Judges

                           (Opinion filed: October 13, 2010)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Kin Yan Tam appeals from an order of the United States District Court for the

Eastern District of Pennsylvania denying his motion under 18 U.S.C. § 3582 to reduce his
sentence. We will affirm the judgment of the District Court.

       Because the parties are familiar with the facts, we provide only a summary here.

On January 11, 2000, Tam pleaded guilty to a number of related crimes, including

conspiracy to distribute heroin and to possess heroin with intent to distribute, in violation

of 21 U.S.C. § 846, and conspiracy to import heroin into the United States, in violation of

21 U.S.C. § 963. Tam was sentenced on April 11, 2000 pursuant to the federal

Sentencing Guidelines; the District Court determined that § 2D1.1 was the applicable

offense guideline. The District Court then determined the drug quantity and computed

the base offense level to be 36, based on a drug quantity of at least ten but less than 30

kilograms of heroin. Tam’s guilty plea agreement stipulated that his base offense level

would be raised by four levels because he was a leader and organizer of the criminal

enterprise, and would be reduced by two levels for acceptance of responsibility. The

resulting total offense level was thus 38. Based on his Criminal History Category of I, the

Guidelines sentencing range was 235 to 293 months imprisonment. The District Court

imposed a sentence of 252 months imprisonment on the drug counts, along with shorter

concurrent sentences for the remaining counts. This Court affirmed in 2001. Tam filed

two motions to vacate his sentence pursuant to 28 U.S.C. § 2255, both of which were

denied.

       In March 2010, Tam filed a motion pursuant to 18 U.S.C. § 3582(c) to modify his

sentence under Amendment 591 to the Sentencing Guidelines. By order entered June 1,



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2010, the District Court denied the motion, concluding that Tam was not entitled to relief

under Amendment 591. Tam appeals. Upon notification by this Court that the appeal

would be submitted for possible summary action, Tam filed a response in opposition to

summary action.

       We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the

District Court's interpretation and application of the Sentencing Guidelines. See United

States v. Edwards, 309 F.3d 110, 112 (3d Cir. 2002) (per curiam). Under section

3582(c)(2), a court may reduce an imposed sentence based on an amendment to the

Sentencing Guidelines if the amendment is named in the Sentencing Commission’s policy

statement, § 1B1.10. See United States v. McBride, 283 F.3d 612, 614 (3d Cir. 2002).

Amendment 591 is retroactively applicable under § 1B1.10(c). A sentencing court refers

to the Statutory Index of the Sentencing Manual (Appendix A) in choosing the offense

guideline. Amendment 591 no longer allows a sentencing court to choose the offense

guideline based on actual conduct of the offender, rather than on the underlying offense.1

Instead, Amendment 591 requires the sentencing court to apply only the offense guideline

listed in Appendix A that corresponds to the statute of conviction. See United States v.

Diaz, 245 F.3d 294, 302 (3d Cir. 2001).

       In denying Tam’s section 3852 motion, the District Court explained that it had



   1
    Prior to the Amendment, a sentencing court was authorized to conduct a “heartland
analysis” to determine which offense Guideline should be applied in atypical cases.
United States v. Smith, 186 F.3d 290 (3d Cir. 1999).

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selected the applicable offense guideline (§ 2D1.1), referring to Appendix A, and based

on Tam’s convictions under 21 U.S.C. §§ 846 and 963. As this is exactly the procedure

now mandated by Amendment 591, no Amendment 591 violation occurred. Tam appears

to argue that Amendment 591 would preclude the District Court from adjusting his Base

Offense Level, but he confuses the concepts of the applicable “offense guideline” with

the “base offense level” within that offense guideline. See United States v. Rivera,

293 F.3d 584, 585 (2d Cir. 2002); accord, United States v. Moreno, 421 F.3d 1217, 1219-

20 (11th Cir. 2005) (Amendment 591 does not restrict the use of judicially-found facts to

select the base offense level). We agree with the District Court’s conclusion that

Amendment 591 does not afford Tam any relief because the application of § 2D1.1 as the

offense guideline at his sentencing was based on the statute of conviction, not on other

conduct.

         Because we conclude that his appeal presents us with no substantial question, see

Third Circuit L.A.R. 27.4 and I.O.P. 10.6, we will summarily affirm the District Court’s

order.




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