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


5-28-2009

USA v. Kevin Roberson
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2501




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Recommended Citation
"USA v. Kevin Roberson" (2009). 2009 Decisions. Paper 1294.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1294


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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 08-2501
                                      _____________

                           UNITED STATES OF AMERICA

                                            v.

                                 KEVIN ROBERSON,
                                             Appellant
                                  _______________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                  (D.C. No. 88-cr-173)
                    District Judge: Honorable William W. Caldwell
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 20, 2009

            Before: FUENTES, JORDAN and NYGAARD, Circuit Judges.

                                 (Filed : May 28, 2009)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

       Kevin Roberson appeals the District Court’s denial of his motion for a sentence

reduction. Because the District Court did not have authority to reduce his sentence under

18 U.S.C. §3582(c), we will affirm.
I.     Background

       Kevin Roberson pled guilty to conspiracy to possess with intent to manufacture or

distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846; and possession with

intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). In its Pre-

Sentence Report (“PSR”), the United States Probation Office assigned Roberson a

criminal history category of VI and a total offense level of 41.1 Those calculations carried

a Guidelines sentencing range of 360 months to life in prison. Adopting the recommended

calculations in the PSR, the District Court sentenced Roberson to 360 months’

imprisonment.

       After the United States Sentencing Commission instituted Amendment 706 to the

Guidelines, a retroactive two-level sentencing reduction for crack cocaine offenses,

Roberson moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). In addition to

arguing that Amendment 706 entitled him to a reduction, Roberson claimed that the

District Court had erroneously characterized him as a career offender.

       The District Court agreed that Roberson should not have been sentenced as a

career offender, but it determined that neither re-categorizing his criminal history, nor

applying the two-level reduction, had the effect of lowering his sentencing range. Based




       1
        Because the drug quantity attributed to Roberson was in excess of 500 grams, his
base offense level was 36. Two levels were added for possession of a firearm during the
offense, and three were added for his leadership role of an enterprise involving five or
more participants.

                                              2
on U.S.S.G.§ 1B1.10(a)(2)(B), which states that a reduction is not authorized under 18

U.S.C. § 3582(c)(2) if the “amendment listed in subsection (c) does not have the effect of

lowering the defendant’s applicable guideline range,” the Court denied Roberson’s

motion. This timely appeal followed.

II.    Discussion 2

       Roberson contends that the District Court improperly treated the policy statement

contained in U.S.S.G. § 1B1.10(a)(2)(B) as mandatory and that, because the policy

statement is advisory, the Court was required to review the factors enumerated in 18

U.S.C. § 3553(a) to determine if a reduction was appropriate. That argument is based on

the incorrect premise that the Sentencing Guidelines give district courts the authority to

consider motions for sentence reductions. Such authority actually stems from 18 U.S.C.

§ 3582(c), according to which courts are generally prohibited from modifying terms of

imprisonment once they are imposed. An exception exists, however, for “defendant[s]

who ha[ve] been sentenced ... based on a sentencing range that has subsequently been

lowered by the Sentencing Commission ... .” Id. § 3582(c)(2).

       While Amendment 706 lowered Roberson’s offense level from 41 to 39, his

sentencing range remained 360 months to life imprisonment. Because he was not




       2
        The District Court had jurisdiction to review the motion under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
interpretation of the Sentencing Guidelines de novo. United States v. Edwards, 309 F.3d
110, 112 (3d Cir. 2002).

                                             3
sentenced “based on a sentencing range that [was] subsequently lowered” by the

amendment, § 3582(c)(2) did not authorize the District Court to reduce his sentence.3 See

also United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009) (“Amendment 706 only

decreased the base offense level for crack cocaine offenses by two levels. To be entitled

to a reduction of sentence, a defendant’s sentencing range must have been lowered by

recalculation based on the amended base offense level.”) (emphasis omitted)).

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s Order denying

Roberson’s motion for a sentence reduction.




       3
        Although the error has no bearing on our analysis, we note that the District Court
did not have the authority to reconsider the application of the career offender status to
Roberson. Mateo, 560 F.3d at 156

                                              4
