                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-7-2007

USA v. West
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1375




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DLD-306                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     NO. 07-1375
                                  ________________

                           UNITED STATES OF AMERICA

                                             v.

                                  BENJAMIN WEST,

                                        Appellant
                     ______________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                            (D.C. Crim. No. 88-cr-00172-1)
                     District Judge: Honorable Sylvia H. Rambo
                     ____________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
          or Summary Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                     July 19, 2007

            BEFORE: BARRY, AMBRO and FISHER, CIRCUIT JUDGES

                                (Filed: August 7, 2007)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM.

      Benjamin West appeals from the District Court’s order denying his motion under

18 U.S.C. § 3582 to reduce his sentence. Because this appeal presents no substantial

question, we will summarily affirm the judgment of the District Court.
       In 1989, Benjamin West was convicted in the United States District Court for the

Middle District of Pennsylvania of conspiracy to distribute and possess with intent to

distribute cocaine base (“crack cocaine”) in violation of 21 U.S.C. §§ 846 and 841(a)(1)

(count 1); distribution and possession with intent to distribute 50 grams or more of crack

cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 18 U.S.C. § 2 (count

2); distribution of crack cocaine within 1000 feet of a school in violation of 21 U.S.C. §§

845(a) and 841(a)(1) (count 3); and distribution of crack cocaine to a person under the

age of 21 in violation of 21 U.S.C. §§ 845(a) and 841(a)(1) (count 4). Pursuant to the

sentencing guidelines, the District Court found that West had a base offense level of 36.

It then added a 4-level enhancement for his leadership role in the offenses, yielding an

offense level of 40. Combined with his criminal history category of III, the Guidelines

yielded a sentencing range of 360-months to life imprisonment for each of his offenses.

The District Court sentenced West to four concurrent 360-month terms of imprisonment.

His conviction was affirmed on appeal.

       In 1997, West filed a motion to vacate his sentence under 28 U.S.C. § 2255. In

response, the Government conceded that his convictions under counts 2 and 3 amounted

to double jeopardy. The District Court then vacated his conviction for distribution and

possession with intent to distribute (count 2) and denied the rest of his claims. We denied

his request for a certificate of appealability. United States v. West, C.A. No. 98-7330 (3d

Cir. order entered on December 22, 1998). West continued to file various collateral



                                             2
attacks on his sentence, most recently an application to file a second or successive § 2255

motion. In re: West, C.A. No. 06-2436 (3d Cir. order entered on August 28, 2006).1

       On October 27, 2006, West filed this motion to modify his sentence pursuant to

§ 3582(c). In the motion, he argued that, under Amendment 591 to the United States

Sentencing Guidelines, the District Court used the wrong guidelines to calculate his base

level offense when it re-sentenced him in 1997. The District Court denied the motion and

this appeal ensued.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s

interpretation and application of the Sentencing Guidelines de novo. United States v.

Yeaman, 194 F.3d 442, 456 (3d Cir.1999).

       Section 3582(c)(2) allows a court to reduce a sentence when a defendant has been

sentenced to a term of imprisonment pursuant to a sentencing range that has subsequently

been lowered by the Sentencing Commission. United States v. McBride, 283 F.3d 612,

614 (3d Cir. 2002). Under § 3582(c)(2), a court may reduce a sentence in response to an

amendment of the Sentencing Guidelines if the amendment is named in the Sentencing

Commission’s policy statement § 1B1.10.2 Id. Amendment 591 to the Guidelines is one

of the amendments listed in § 1B1.10 that applies retroactively to sentences such as


       1
        In 2005, the District Court modified his sentence under U.S.S.G. § 5G1.3(b) to
credit him with 36 months that he spent incarcerated on a related state charge.
       2
       § 1B1.10(c) reads: “Amendments covered by this policy statement are listed in
Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 461,
484, 488, 490, 499, 505, 506, 516, 591, 599, 606, and 657.”

                                             3
West’s. However, the application of the amendment to West’s sentencing would result in

no change in West’s sentence.

       Before 2000, a sentencing court could, in an atypical case, employ a guideline that

did not correspond to the statute of conviction if “the guideline for the statute of

conviction is ‘inappropriate because of the nature of the conduct involved’.” United

States v. Smith, 186 F.3d 290, 297 (3d Cir. 1999) (quoting U.S. Sentencing Manual App.

A at 417 (Introduction)). Amendment 591 abrogated this understanding and mandated

that, even in atypical cases, a sentencing court is required to apply the guideline listed in

Appendix A of the Sentencing Manual that corresponds to the statute of conviction

without regard to any relevant uncharged conduct. United States v. Diaz, 245 F.3d 294,

303 (3d Cir. 2001).

       In West’s case, the sentencing court grouped together the offenses and applied

Guideline 2D1.1, the guideline appropriate for § 841(a) (count 2), to the entire group.3

Pursuant to § 2D1.1(a)(3), the court consulted 2D1.1's drug quantity table to set his base

offense level. Because West was involved in the distribution of more than 500 grams of

crack cocaine, the drug quantity table yielded the base offense level of 36. After his




       3
       Where, as here, a defendant is convicted of various offenses involving
substantially the same conduct, the convictions should be grouped together for the
purposes of sentencing. See U.S.S.G. § 3D1.1(a). The count carrying the highest
applicable offense level must apply to the entire group for sentencing purposes. U.S.S.G.
§ 3D1.2(b); Diaz, 245 F.3d at 303.

                                              4
count 2 conviction was vacated, the sentencing court again relied on § 2D1.1 to set his

base offense level even though count 2 had been vacated.

       West argues that applying Amendment 591 to his resentencing would have

prevented the District Court from relying on the drug weight table in § 2D1.1 to

determine his base offense level; but he is wrong. Even if Amendment 591 were applied

to his 1997 sentence, the District Court would have consulted § 2D1.1's drug quantity

table and arrived at the same base offense level. The Statutory Appendix indicates that

the guideline to be employed for convictions under 21 U.S.C. § 846 is 2D1.1. Therefore,

a sentencing court applying Amendment 591 to West’s conviction under § 846 for

conspiracy to distribute crack cocaine (count 1) would also apply § 2D1.1 to determine

his base offense level. 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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