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


3-24-2009

USA v. Jose Ramone Mateo
Precedential or Non-Precedential: Precedential

Docket No. 08-3249




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"USA v. Jose Ramone Mateo" (2009). 2009 Decisions. Paper 1619.
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                                                PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                        __________

                            No. 08-3249


                  UNITED STATES OF AMERICA

                                  v.

                      JOSE RAMON MATEO,
                                      Appellant.
                           __________

            On Appeal from the United States District Court
                for the Middle District of Pennsylvania
                       (D.C. Criminal No. 99-56)
           (District Judge: Honorable William W. Caldwell)
                              __________

       Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                       March 6, 2009


      Before: BARRY and GREENBERG, Circuit Judges,
           and ACKERMAN, Senior District Judge.*

                        Filed: March 24, 2009


JAMES V. WADE
Federal Public Defender
RONALD A. KRAUSS



       *
           Honorable Harold A. Ackerman, Senior United States
District Judge for the District of New Jersey, sitting by designation.

                                  1
Assistant Federal Public Defender – Appeals
100 Chestnut Street, Suite 306
Harrisburg, PA 17101

Attorneys for Appellant

MARTIN C. CARLSON
United States Attorney
WILLIAM A. BEHE
Assistant United States Attorney
228 Walnut Street
Harrisburg, PA 17108

Attorneys for Appellee

                          __________

                  OPINION OF THE COURT
                        __________

ACKERMAN, Senior District Judge.

       Jose Ramon Mateo appeals the District Court’s denial of his
motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).
Mateo was convicted of a drug offense involving crack cocaine,
but his sentencing range was ultimately calculated based on his
status as a career offender. In his motion, Mateo sought a
reduction in his sentence based on the Sentencing Commission’s
recent amendments to the Sentencing Guidelines that retroactively
lowered the base offense levels for crack cocaine offenses.
Because the crack cocaine amendments do not lower Mateo’s
applicable sentencing range, the District Court did not err in
refusing to modify Mateo’s sentence. We will, therefore, affirm.

                                I.

      In June 1999, Mateo pled guilty to distribution of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1). The District Court
adopted the Guidelines calculations recommended by the Probation
Office in its Presentence Investigation Report (“PSR”). At

                                2
sentencing in September 1999, Mateo’s counsel raised no
objections to the PSR. Based on a drug quantity of at least 20 but
less than 35 grams, the PSR calculated a base offense level of 28
pursuant to U.S.S.G. § 2D1.1(c). After a three-level downward
adjustment for acceptance of responsibility, Mateo ordinarily
would have faced a total offense level of 25. However, Mateo had
at least two prior felony convictions for controlled substance
offenses and crimes of violence, thus making him a career offender
for purposes of U.S.S.G. § 4B1.1. For career offenders, if the
relevant alternative offense level listed in the table at U.S.S.G. §
4B1.1(b) is higher than the calculated offense level, § 4B1.1(b)
requires that the higher offense level shall apply. The table at
§ 4B1.1(b) lists an offense level of 34 for offenses that carry a
statutory maximum term of 25 years or more. Here, Mateo faced
a statutory maximum sentence of 40 years. Thus, the higher
offense level of 34 applied, regardless of the offense level as
otherwise calculated under the Guidelines. In other words,
Mateo’s base offense level was determined by § 4B1.1, not
§ 2D1.1(c). After the three-level downward adjustment for
acceptance of responsibility, Mateo faced a total offense level of
31. With a Criminal History category of VI as mandated by the
career offender provision, Mateo faced a Guidelines range of 188-
235 months. The District Court sentenced Mateo to 188 months.

        In November 2007, the Sentencing Commission amended
the crack cocaine guidelines by revising a portion of the drug
quantity table at § 2D1.1(c). Generally, Amendment 706 reduced
the base offense levels for crack cocaine offenses under § 2D1.1(c)
by two levels. U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007). The
Sentencing Commission later declared Amendment 706 to be
retroactive. U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008).
Based on these amendments, Mateo filed a motion under 18 U.S.C.
§ 3582(c)(2) to reduce his sentence. Section 3582(c)(2) allows a
court to reduce a term of imprisonment “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).” 18 U.S.C.
§ 3582(c)(2). A court “may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that
they are applicable, if such a reduction is consistent with applicable

                                  3
policy statements issued by the Sentencing Commission.” Id.

       The District Court denied Mateo’s motion, finding that
Amendment 706 does not reduce the sentencing range applicable
to Mateo. Mateo timely appealed.1 We review de novo a district
court’s interpretation of the Guidelines. See United States v. Wood,
526 F.3d 82, 85 (3d Cir. 2008). We review a court’s ultimate
decision whether to grant or deny a defendant’s motion to reduce
sentence under § 3582(c)(2) for abuse of discretion.2

       Mateo contends that his sentence should be reduced because
that sentence was “based on” an offense level in § 2D1.1(c) that
was lowered by the Sentencing Commission.                 However,
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. The
applicable policy statement instructs that any reduction in sentence
is not consistent with the policy statement and therefore not
authorized by 18 U.S.C. § 3582(c)(2) if an amendment “does not
have the effect of lowering the defendant’s applicable guideline


       1
         The District Court had jurisdiction to review Mateo’s
motion pursuant to 18 U.S.C. § 3231. We have jurisdiction over
his appeal under 28 U.S.C. § 1291.
       2
          We have not explicitly stated the standard of review for a
district court’s decision to grant or deny a motion for reduction of
sentence pursuant to § 3582(c)(2), although we have implied that
abuse of discretion review applies. See United States v. Hanlin, 48
F.3d 121, 124 n.2 (3d Cir. 1995). Such a standard comports with
the language of the statute, which states that, under appropriate
circumstances, “the court may reduce the term of imprisonment.”
18 U.S.C. § 3582(c)(2) (emphasis added). Other courts to have
considered this question with regard to a motion to reduce sentence
based on the crack cocaine amendments have similarly applied an
abuse of discretion standard to a district court’s decision to grant
or deny the motion. See United States v. Caraballo, 552 F.3d 6, 8
(1st Cir. 2008); United States v. Sharkey, 543 F.3d 1236, 1238
(10th Cir. 2008).

                                 4
range.” U.S.S.G. § 1B1.10(a)(2)(B).

       Here, the crack cocaine amendment ordinarily would have
served to lower Mateo’s base offense level from 28 to 26 under §
2D1.1(c). However, Mateo’s sentencing range was determined
based on the alternative career offender offense level as stipulated
by § 4B1.1. As a career offender, Mateo’s base offense level
remains 34 no matter whether the otherwise applicable base
offense level – absent Mateo’s career offender status – is 28 or 26.
Keeping all other Guidelines calculations unchanged, application
of Amendment 706 still yields a sentencing range of 188-235
months, based on a total offense level of 31 and a Criminal History
category of VI. Amendment 706 does not affect Mateo’s
applicable sentencing range, and therefore § 3582(c)(2) does not
authorize a reduction in his sentence.

        Mateo stresses the words “based on” in § 3582(c)(2) in
contending that he was sentenced “based on” the base offense level
of U.S.S.G. § 2D1.1(c) because the District Court consulted that
section in calculating his offense level. Because the crack cocaine
amendments lowered the offense levels provided by § 2D1.1(c),
according to Mateo, he is entitled to seek a modification of his
sentence, no matter the operation of the career offender provision
of the Guidelines. However, Mateo ignores the words that follow
“based on” in the statute authorizing modification of sentence: the
defendant must have been sentenced “based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added). This
language is clear and unambiguous: “[t]he term ‘sentencing range’
clearly contemplates the end result of the overall guideline
calculus, not the series of tentative results reached at various
interim steps in the performance of that calculus.” United States v.
Caraballo, 552 F.3d 6, 10 (1st Cir. 2008). Therefore, pursuant to
the statute, “if an amended guideline does not have the effect of
lowering the sentencing range actually used at sentencing, the
defendant’s sentence was not based on that range within the
intendment of the statute.” Id. Amendment 706 only affects
calculation under § 2D1.1(c), and the lowering of the base offense
level under § 2D1.1(c) has no effect on the application of the career
offender offense level required by § 4B1.1. See, e.g., United States

                                 5
v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008) (“Amendment
706 had no effect on the career offender guidelines in § 4B1.1.”).
“[T]o say that the defendant’s sentence was ‘based on’ the crack
cocaine guideline strains credulity.” Caraballo, 552 F.3d at 10.

        Because Amendment 706 does not lower Mateo’s
sentencing range due to his status as a career offender, he may not
seek reduction in sentence under § 3582(c)(2). We join many of
our sister circuits in so holding. See, e.g., United States v. Forman,
553 F.3d 585, 589-90 (7th Cir. 2009) (per curiam); United States
v. Ayala-Pizarro, 551 F.3d 84, 85 (1st Cir. 2008); Sharkey, 543
F.3d at 1239; United States v. Moore, 541 F.3d 1323, 1327-28
(11th Cir. 2008); United States v. Thomas, 524 F.3d 889, 890 (8th
Cir. 2008). Amendment 706 simply “provides no benefit to career
offenders.” Forman, 553 F.3d at 589.

       Mateo further relies on United States v. Booker, 543 U.S.
220 (2005), which rendered the Guidelines advisory. However,
this Court has rejected the argument that Booker provides a basis
for reduction of sentence not otherwise allowable under § 3582(c).
Section 3582(c) provides the only authority to reduce sentence
here, and “[n]othing in [Booker] purported to obviate the
congressional directive on whether a sentence could be reduced
based on subsequent changes in the Guidelines.” United States v.
Wise, 515 F.3d 207, 221 n.11 (3d Cir. 2008); see also United States
v. McBride, 283 F.3d 612, 616 (3d Cir. 2002) (finding that
defendant’s argument based on Apprendi v. New Jersey, 530 U.S.
466 (2000), “was independent of and unrelated to any change in the
Guidelines and was, therefore, outside the scope of a sentence
modification under § 3582”). Other Courts of Appeals have
agreed. As the First Circuit has held, “Booker has no effect on
whether a career offender’s sentence not ‘based on’ a lowered
sentencing range for an underlying offense opens the gate for a
sentence reduction under section 3582(c)(2).” Ayala-Pizarro, 551
F.3d at 85 (citing Caraballo, 552 F.3d at 10); see also Sharkey, 543
F.3d at 1239 (rejecting contention that “the Booker line of cases
provides a separate basis for relief under § 3582(c)(2)”).

      In addition to requiring that a defendant’s sentencing range
be lowered by the Sentencing Commission, § 3582(c)(2) also states

                                  6
that any sentence modification must be consistent with applicable
Sentencing Commission policy statements.           18 U.S.C. §
3582(c)(2). The relevant Guidelines policy statement, recently
revised in light of the crack cocaine amendments, requires a court
to

       determine the amended guideline range that would
       have been applicable to the defendant if the
       amendment(s) to the guidelines listed in subsection
       (c) had been in effect at the time the defendant was
       sentenced. In making such determination, the court
       shall substitute only the amendments listed in
       subsection (c) for the corresponding guideline
       provisions that were applied when the defendant was
       sentenced and shall leave all other guideline
       application decisions unaffected.

U.S.S.G. § 1B1.10(b)(1) (emphasis added). The District Court had
no authority to reconsider its prior determination to apply the career
offender guidelines applied to Mateo. Only the effect of the crack
cocaine amendments could be considered. Had Amendment 706
been in effect when Mateo was sentenced, “that provision would
not have had any effect on the sentencing range actually used. . . .
Thus Amendment 706 did not lower the defendant’s actual
sentencing range.” Caraballo, 552 F.3d at 10. We reject Mateo’s
contention that adherence to the policy statement violates Booker
and contravenes the advisory nature of the Guidelines. “Booker
neither undermined the continued vitality of section 3582(c)(2) nor
altered the customary canons of statutory construction.”
Caraballo, 552 F.3d at 10 (citing Wise, 515 F.3d at 221 n.11).
Similarly, Kimbrough v. United States, 128 S. Ct. 558 (2007), does
not aid Mateo, because it too left unchanged the requirements for
reduction of sentence under § 3582(c)(2). See Sharkey, 543 F.3d
at 1239.

                               II.
       Because the crack cocaine amendments do not lower
Mateo’s sentencing range, the District Court did not err in denying
Mateo’s motion to reduce sentence. We will affirm the judgment
of the District Court.

                                  7
