                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3759




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                                                            NOT PRECEDENTIAL



                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT


                                           _________

                                          No. 07-3759
                                          _________


                               UNITED STATES OF AMERICA

                                               v.

                                      BERNARD FIELDS,
                                                   Appellant

                                    ___________________


                          Appeal from the United States District Court
                            for the Eastern District of Pennsylvania
                                       No. 91-cr-00570-5
                        (Senior District Judge: Honorable Marvin Katz)


                                    ___________________

                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      October 30, 2008

                   Before: McKEE, NYGAARD, and SILER, Circuit Judges*
                               (Filed: December 12, 2008 )



       *
         Honorable Eugene E. Siler, Jr. Circuit Judge, United States Court of Appeals for the
Sixth Circuit, sitting by designation.
                                   OPINION OF THE COURT

McKee, Circuit Judge,

       Bernard Fields appeals the district court’s refusal to modify his sentence pursuant to 18

U.S.C. § 3582(c)(2). For the reasons set forth below, we will vacate the district court’s order

denying Fields’ motion, and remand for reconsideration of the sentence.

                                                 I.

       As we write only for the parties who are familiar with this case, a detailed discussion of

the factual and procedural history is not necessary. We exercise plenary review of the district

court’s interpretation of the Sentencing Guidelines. United States v. Grier, 475 F.3d 556, 570

(3d Cir. 2007) (en banc).

       Fields makes numerous arguments in challenging the validity of his sentence, but his

central claim is that the district court erred in concluding that Amendment 599 of the Sentencing

Guidelines did not affect his sentence. Amendment 599 reduced the applicable sentencing range

from life imprisonment to 324-405 months imprisonment.

       18 U.S.C. § 3582(c)(2), allows a district court to reduce a term of imprisonment when the

applicable sentencing range is lowered by subsequent amendment to the Sentencing Guidelines

if the Sentencing Commission intended the amendment to be applied retroactively pursuant to

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

       In imposing the sentence here, the district court considered the offense characteristic of

possessing a firearm pursuant to U.S.S.C. § 2D1.1(b)(1). To its credit, the government now

concedes that “the court should not impose a specific offense characteristic for possession of a

firearm in calculating the guideline range for the underlying drug trafficking offense.”


                                                 2
Appellee’s Br. at 12. The government initially “argued that this principle was not applicable in

Fields’ case,” because the enhancement was not based on the firearm involved in the offense of

conviction. Id. However, the government now candidly concedes that, based on “a careful

examination of the applicable law,” that fact “is irrelevant and . . . application of the 2D1.1(b)(1)

enhancement in this case is inappropriate under the amended [G]uidelines.” Id. at 12-13. Rather,

as the government states, “[t]he district court, under 1B1.10, has discretion in determining

whether to reduce the sentence to a term within [the applicable] range, and the case should be

remanded for the court to make that decision.” Id. at 13. See United States v. Knobloch, 131

F.3d 366, 373 (3d Cir. 1997).
                                                  II.

        Fields also argues that he should have the benefit of the holding in United States v.

Booker, 543 U.S. 220 (2005), on remand. The government argues that we rejected this argument

when we held that Fields could not file a second motion under 28 U.S.C. § 2255 because Booker

did not apply retroactively and was therefore not a basis for a new motion under § 2255. The

government also argues that Booker does not apply to proceedings under § 3582(c)(2) because

they do not constitute a “full re-sentencing,” and because the policy statements of the Sentencing

Commission limit the district court’s discretion to a reduction that is within the newly calculated

Guideline range.

        We need not discuss these arguments in detail because we have already held that

resentencings pursuant to § 3582(c)(2) are limited to applying the retroactive Guideline. See

McBride, 283 F.3d at 615 (a reduction in sentence under § 3582(c)(2) does not constitute a full

re-sentencing and the district court did not err in limiting its consideration to the effect of a



                                                   3
sentencing amendment rather than considering an alleged Apprendi error). See also Lloyd v.

United States, 407 F.3d 608, 614-16 (3d Cir. 2005) (Booker does not apply retroactively to

concluded cases).

                                               III.

       For all of the above reasons, we will vacate the district court’s order denying Fields’ §

3582(c)(2) motion, and remand for reconsideration of an appropriate sentence within the

amended Guideline range. In doing so, we note our appreciation of the government’s candor. It is

in the best tradition of advocacy.




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