                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2009

USA v. Percy Dillon
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3397




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                                                                   NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 08-3397
                                     _____________

                            UNITED STATES OF AMERICA,

                                            v.

                                    PERCY DILLON,
                                                       Appellant

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Criminal No. 93-cr-0084)
                       District Judge: Honorable Stewart Dalzell
                                     ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   May 19, 2009

            Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.

                             (Opinion Filed: June 10, 2009)




                              OPINION OF THE COURT


FUENTES, Circuit Judge:

      Percy Dillon appeals the District Court’s partial denial of his motion to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2). In 2008, the United States Sentencing

                                            1
Commission amended the United States Sentencing Guidelines (“Guidelines”),

retroactively reducing the base offense level for crack cocaine offenses. The District

Court subsequently entered an order reducing Dillon’s sentence by two-levels, but held

that it lacked authority to reduce Dillon’s sentence further. Dillon argues that the District

Court erred in failing to recognize that United States v. Booker, 543 U.S. 220 (2005) gave

it such authority. For the reasons that follow, we will affirm.

                                              I.

       If Booker did apply in proceedings pursuant to § 3582, Dillon would likely be an

ideal candidate for a non-Guidelines sentence. In 1993, Dillon was convicted of

conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of

cocaine base in violation of 21 U.S.C. § 846; use of a firearm during a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1); and possession with intent to distribute more

than 500 grams of cocaine in violation of 18 U.S.C. § 841(a)(1).

       At the time, the District Court calculated Dillon’s offense level to be 38 and his

criminal history category to be II. Dillon received two criminal history points; one for

misdemeanor marijuana possession and one for misdemeanor resisting arrest. Thus,

Dillon’s Guidelines Range was 322 to 387 months.1

       The District Court sentenced Dillon to the bottom of the Guidelines Range, 322




       1
         This Guidelines Range includes the mandatory consecutive 60-month sentence
for the firearms offense. See 18 U.S.C. § 924(c)(1).

                                              2
months. However, the District Court repeatedly stated that it was constrained by the

Guidelines to impose what it believed to be an unreasonable sentence. At Dillon’s

original sentencing hearing, the District Court noted: “I personally don’t believe that you

should be serving 322 months[, b]ut I feel I am bound by those Guidelines . . .” App. at

99. The District Court continued: “I don’t say to you that these penalties are fair. I don’t

think they are fair. I think they are entirely too high for the crime you have committed

even though it is a serious crime.” Id. The District Court also noted that it believed

Dillon’s sentence to be unreasonable in its Statement of Reasons: “[T]he guidelines range

is unfair to the defendant. The Court, however, is bound by the guidelines range.” App.

at 5.

        Following the change in the crack cocaine offense level, Dillon filed a pro se

motion for a sentence reduction. The District Court recalculated Dillon’s offense level to

be 36 and reduced Dillon’s sentence to 270 months. Dillon argued that the District Court

should apply Booker in resentencing him, but the District Court found that Booker did not

apply and that it lacked jurisdiction to do grant more than a 2-level sentence reduction.

                                              II.

        A court generally may not modify a term of imprisonment once it has become

final. 18 U.S.C. § 3582(c). However, 18 U.S.C. § 3582(c)(2) provides that:

        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

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       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.

       In Booker, the Supreme Court concluded that the Sixth Amendment requires a jury

to find the facts that establish a mandatory floor on a defendant’s sentence. 543 U.S. at

229, 244. Following Booker, a sentencing court must calculate a defendant’s Guidelines

range, but may only use that range as a starting point for determining a reasonable

sentence based on an individualized assessment of the factors set forth at 18 U.S.C. §

3553(a). Gall v. United States, 128 S.Ct. 586, 596-97 (2007). Dillon argues that a district

court adjusting a sentence pursuant to § 3582(c) must also treat the amended Guidelines

range as advisory, and impose a sentence based on the procedures set forth in the Booker

line of cases.

       We have held that Booker does not effect eligibility for a § 3582(c) sentence

reduction. See, e.g., United States v. Doe, 564 F.3d 305 (3d Cir. 2009) (holding that

defendants’ who received substantial assistance departures below the statutory mandatory

minimum were not eligible for reduction); United States v. Mateo, 560 F.3d 152, 155 (3d

Cir. 2009) (holding that defendant sentenced based on career offender Guidelines Range

was not eligible for reduction as a result of the crack cocaine amendment).

       Though, we have not yet written precedentially on whether Booker gives a district

court authority to give a defendant who is eligible for a sentence reduction under § 3582

an additional reduction, our reasoning in the eligibility cases also applies in this context.



                                               4
In the context of eligibility for a § 3582 sentence reduction we explained that:

               Nowhere in Booker did the Supreme Court mention § 3582(c)(2).
       Because § 3582(c)(2) proceedings may only reduce a defendant’s sentence
       and not increase it, the constitutional holding in Booker does not apply to §
       3582(c)(2). See Booker, 543 U.S. at 244. Additionally, the remedial
       holding in Booker invalidated only 18 U.S.C. § 3553(b)(1), which made the
       Sentencing Guidelines mandatory for full sentencings, and § 3742(e), which
       directed appellate courts to apply a de novo standard of review to departures
       from the Guidelines. Therefore, Booker applies to full sentencing
       hearings–whether in an initial sentencing or in a resentencing where the
       original sentence is vacated for error, but not to sentence modification
       proceedings under § 3582(c)(2). Not only are sentence modification
       proceedings sanctioned under a different section of the statute than those at
       issue in Booker, but the Booker court held that “[w]ith these two sections
       excised (and statutory cross-references to the two sections consequently
       invalidated), the remainder of the Act satisfies the Court's constitutional
       requirements.” Booker, 543 U.S. at 259. Section 3582(c)(2) contains no
       cross-reference to § 3553(b) and therefore was not affected by Booker. Nor
       is there anything else in Booker that directly addresses § 3582(c)
       proceedings.
                                             ....

              Nothing in Booker purported to obviate the congressional directive
       in § 3582(c)(2) that a sentence reduction pursuant to that section be
       consistent with Sentencing Commission policy statements. The language of
       § 3582(c)(2) could not be clearer: the statute predicates authority to reduce
       a defendant’s sentence on consistenc[y] with the policy statement, and the
       policy statement provides that a reduction is not consistent if the
       amendment does not have the effect of lowering the defendant’s applicable
       Guideline range. The Guidelines are no longer mandatory, but that does not
       render optional statutory directives.

                                        ....

              Because U.S.S.G. § 1B1.10 is binding on the District Court pursuant
       to § 3582(c)(2), the District Court correctly concluded that it lacked the
       authority to further reduce the Appellants’ sentences.

Doe, 564 F.3d at 312-14 (internal citations and quotation marks omitted). For the same

                                               5
reasons, we conclude that Booker does not apply to the size of a sentence reduction that

may be granted under § 3582(c)(2).

       In doing so, we are joined by the overwhelming majority of our sister Courts of

Appeals. See United States v. Fanfan, 558 F.3d 105 (1st Cir. 2009) (holding that Booker

does not apply); United States v. Dunphy, 551 F.3d 247, 254 (4th Cir. 2009) (same);

United States v. Cunningham, 554 F.3d 703, 705 (7th Cir. 2009) (same); United States v.

Starks, 551 F.3d 839, 842 (8th Cir. 2009) (same); United States v. Rhodes, 549 F.3d 833,

840 (10th Cir. 2008) (same); United States v. Melvin, 556 F.3d 1190 (11th Cir. 2009)

(same); United States v. Savoy, —F.3d—, 2009 WL 1457976, *2 (2d Cir. 2009), but see

United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007) (holding that Booker abolished the

mandatory nature of the Guidelines in all contexts).

       Dillon also argues that the District Court erred in calculating his criminal history

score. However, the District Court had no authority to reconsider its prior criminal

history determination. See, e.g., Mateo, 560 F.3d at 156.

                                             III.

       Because Booker does not apply in § 3582(c)(2) proceedings, the District Court did

not err in denying Dillon’s motion for a reduction below his new Guidelines Range. We

will affirm the judgment of the District Court.




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