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


11-13-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2187




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-2187
                                     ___________

                           UNITED STATES OF AMERICA

                                            v.

                                JAMES MCINTOSH,
                                a/k/a KAREEM “BEY”

                                   James McIntosh,
                                          Appellant


                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 97-cr-00203-2)
                       District Judge: Honorable Marvin Katz


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 24, 2007

              Before: RENDELL, JORDAN and GARTH, Circuit Judges.

                              (Filed: November 13, 2007)
                                      ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM

      Appellant, James McIntosh, appeals from the District Court’s orders denying his

motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2) and his motion for
reconsideration. For the reasons that follow, we will affirm.

       In 1997, McIntosh was convicted in the United States District Court for the

Eastern District of Pennsylvania of conspiracy to commit robbery, in violation of 18

U.S.C. § 1951; robbery, in violation of 18 U.S.C. § 1951; and using and carrying a

firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). At

sentencing, the government argued that, because McIntosh was a career offender, his

offense level should be increased pursuant to U.S. Sentencing Guidelines § 4B1.1. The

District Court agreed and sentenced McIntosh accordingly. McIntosh appealed. We

affirmed his conviction but remanded the case for reconsideration of whether McIntosh

was properly classified as a career criminal for sentencing purposes. C.A. No. 98-1252.

Upon remand, the government submitted additional evidence of McIntosh’s prior

convictions, and the District Court again sentenced McIntosh as a career offender.

McIntosh appealed, and we affirmed his sentence. C.A. No. 99-1678.

       On January 12, 2007, McIntosh filed a motion to modify his sentence pursuant to

18 U.S.C. § 3582(c). In his motion, McIntosh argues that, under Amendment 591 to the

Sentencing Guidelines, the District Court failed to conduct the appropriate relevant

conduct determination as required by § 1B1.2(b) and § 1B1.3(a). The District Court

denied the motion, and McIntosh appeals.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s interpretation and application of the Sentencing Guidelines de novo.

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

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       Section 3582(c)(2) permits a court to reduce a defendant’s sentence when the

guideline range under which the defendant was sentenced is subsequently lowered by the

Sentencing Commission. See 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 listed as having retroactive application

pursuant to § 1B1.10 of the Sentencing Commission’s policy statement. U.S. Sentencing

Guidelines Handbook (2000). Although Amendment 591 is listed in § 1B1.10, the

amendment does not reduce the guideline range to which McIntosh was sentenced.1

       Before Amendment 591 became effective in 2000, a sentencing court could, in an

atypical case, employ a guideline that did not correspond to the statute of conviction if

“the guideline indicated for the statute of conviction [was] ‘inappropriate because of the

particular conduct involved.’” United States v. Smith, 186 F.3d 290, 297 (3d Cir. 1999)

(quoting U.S. Sentencing Manuel app. A at 417 (Introduction)). Amendment 591

abrogated this interpretation, mandating that, even in atypical cases, sentencing courts

apply the guideline that corresponds to the statute of conviction without regard to any

uncharged conduct. United States v. Diaz, 245 F.3d 294, 303 (3d Cir. 2001).

       In McIntosh’s case, the sentencing court properly applied the sentencing


  1
     Amendment 591 “modifies 1B1.1(a), 1B1.2(a), and the Statutory Index’s
introductory commentary to clarify the inter-relationship among these provisions. The
clarification is intended to emphasize that the sentencing court must apply the offense
guideline referenced in the Statutory Index for the statute of conviction unless the case
falls within the limited “stipulation” exception set forth in 1B1.2(a).” U.S. Sentencing
Guidelines Handbook app. C at 193 (2000) (Reasons for Amendment).

                                             3
guidelines that corresponded with the statutes of his conviction. See U.S. Sentencing

Guidelines Handbook app. A (2000).     Accordingly, Amendment 591 in no way affects

the guideline range that McIntosh was sentenced within.

      We note that, although McIntosh fails to identify Amendment 642 in his motion,

he argues that his sentence would be reduced under U.S. Sentencing Guideline § 5G1.2,

as amended.2 As previously stated, a court may reduce a sentence in response to an

amendment of the Sentencing Guidelines only if the amendment is listed as having

retroactive application pursuant to § 1B1.10 of the Sentencing Commission’s policy

statement. U.S. Sentencing Guidelines Handbook (2002); See also 18 U.S.C.

§ 3582(c)(2). Amendment 642 is not listed in § 1B1.10; accordingly, it has no retroactive

effect. United States v. Thompson, 70 F.3d 279, 281 (3d Cir. 1995).

      For the foregoing reasons, we will affirm the judgments of the District Court.




  2
    Amendment 642 amended § 5G1.2(e), mandating that “[t]he sentence imposed for a
conviction under 18 U.S.C. § 924(c) or § 929(a), shall, under that statute, consist of a
minimum term of imprisonment imposed to run consecutively to the sentence on any
other count. Subsection (e) requires that the total punishment determined under
§ 4B1.1(c) be apportioned among all the counts of conviction.” U.S. Sentencing
Guidelines Handbook app. C at 195 (2002).

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