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


2-11-2009

USA v. Eric Nabried
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2480




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                                                    NOT PRECEDENTIAL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

                                      No. 08-2480
                                     _____________

                           UNITED STATES OF AMERICA

                                              v.

                                    ERIC NABRIED,
                                                   Appellant
                                     _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 03-cr-00309)
                      District Judge: Honorable Edwin M. Kosik
                                  _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  February 2, 2008

               Before: RENDELL, JORDAN and ROTH, Circuit Judges,

                                (Filed: February 11, 2009)

                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       Defendant Eric Nabried appeals the District Court’s May 12, 2008, order denying

his motion pursuant to 18 U.S.C. § 3582(c)(2) for modification of his sentence in light of

the recent retroactive amendments to the crack cocaine Sentencing Guidelines. See 18
U.S.C. 3582(c) and U.S.S.G. § 1B1.10. Because the District Court properly concluded

that the amendments would have no impact on Nabried’s sentence since he was sentenced

as a career offender under § 4B1.1 of the Sentencing Guidelines, we will affirm.

I.     Background

       Pursuant to a written plea agreement, Nabried pled guilty on November 2, 2004 to

one charge of crack distribution in violation of 21 U.S.C. § 841(a)(1). As part of his plea

agreement, Nabried stipulated that he possessed between 5 and 15 grams of cocaine base

and that the applicable offense level, absent a career offender finding, would be 26. He

also agreed that the applicable offense level, should the court find him to be a career

offender, was 32. The presentence investigation report (“PSR”) included the conclusion

that Nabried qualified for “career offender” status under section 4B1.1, which would

result in a sentencing range of 151 to 188 months. Without a career offender finding, the

applicable guidelines range was 84 to 105 months. The plea agreement explicitly

preserved Nabried’s right to challenge a finding that he was a career offender.

       Nabried was sentenced on April 5, 2005. Following argument, during which

defense counsel argued that the career offender provision over-represented Nabried’s

criminal history, the District Court imposed a sentence that “would not be a guideline

sentence, but it will be a sentence that’s considered your argument, including your

argument about the career offender status of this defendant.” (App. at 63.) The Court

rejected Nabried’s request for an 87 month sentence, which would have been within the



                                             -2-
applicable guideline range absent a career offender finding, and imposed a sentence of

110 months.1 The Court stated its belief that the 110 month sentence “satisfied ... the

purposes that are set forth in 18 U.S.C. § 3553(a).” (App. 64.)

       Nabried timely appealed his sentence, arguing that the District Court erred in

applying the career offender provision because United States v. Booker, 543 U.S. 220

(2005), made that provision of the Guidelines advisory and that a lesser sentence would

have accomplished the goals of sentencing. In rejecting those arguments, we concluded

that, as part of calculating the correct sentence under the Guidelines, a district court must

consider the career offender provision where it is applicable. Nabried v. United States,

199 Fed. Appx. 102, 104-05 (3d Cir. 2006). We further concluded that the District Court

was required to, and properly did, consider the career offender provision in Nabried’s

case because his prior convictions for distribution of cocaine and possession with intent to

distribute marijuana rendered section 4B1.1(a) applicable. Id. We also rejected

Nabried’s argument that his sentence was unreasonable, concluding that the District Court

had adequately examined and reasonably applied the §3553(a) factors. Id. at 105-06.

       On March 20, 2008, Nabried filed a motion for modification of his sentence as

allowed by the recent amendments to the Sentencing Guidelines regarding the applicable




        1Nabried received a 3 level reduction for acceptance of responsibility, making his
total offense level at sentencing 29. His criminal history category was enhanced from V
to VI as required under the career offender provision of the Guidelines.

                                             -3-
range for crack cocaine offenses. On May 12, 2008, the District Court denied the motion,

finding that

       the defendant was determined to be a career offender and Amendments 706,
       711, and 715 have no impact on the computation of the Sentencing
       Guidelines. Therefore he does not qualify for a sentence reduction. It is
       further noted that the Court imposed a non-guideline sentence pursuant to
       18 U.S.C. 3553(a) and United States v, Booker 125 S.Ct. 738 (2005) and a
       further reduction is not appropriate.

(App. 3.) Nabried timely appealed that decision.

II.    Discussion 2

       Effective November 1, 2007, the United States Sentencing Commission adopted

Amendment 706 which modified the Guideline ranges applicable to crack cocaine

offenses. Amendment 706, which applies retroactively, generally lowers the applicable

base offense level by two levels. See United States v. Wise, 515 F.3d 207, 220 (3rd Cir.

2008). A defendant sentenced prior to the amendments may seek to have their sentence

reduced pursuant to 18 U.S.C. § 3582(c)(2). Reduction, however, is not automatic and is

left within the discretion of the District Court. See 18 U.S.C. § 3582 (“[T]he 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

policy statements issued by the Sentencing Commission.”) (emphasis added).3 Further, a


        2 The District Court had jurisdiction to review Nabried’s motion for modification
of his sentence under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

      3 We review de novo a district court's interpretation of the Sentencing Guidelines.
United States v. Wood, 526 F.3d 82, 85 (3d Cir. 2008). Although we have not explicitly

                                             -4-
“reduction in the defendant’s term of imprisonment is not consistent with the policy

statement and therefore is not authorized under 18 U.S.C. 3582(c)(2) if ... an amendment

listed in subsection (c) does not have the effect of lowering the defendant’s applicable

Guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). When determining whether a defendant

is entitled to modification of his sentence under the crack cocaine amendments, courts

“shall leave all other Guideline application decisions unaffected.” U.S.S.G. §

1B1.10(b)(1).

       Nabried argues that the District Court erred by refusing to lower his sentence

because the Court had previously granted his motion for a downward departure on the

basis that the career offender provision over-represented his criminal history, and because

the sentence imposed was therefore not based on the career offender provision but on §

2D1.1, which contains the crack cocaine sentencing ranges. He urges us to conclude that




set forth the applicable standard of review of a district court’s decision to grant or deny a
sentence modification pursuant to 18 U.S.C. § 3582(a)(2), circuits which have considered
the issue apply an abuse of discretion standard. United States v. Carter, 500 F.3d 486,
490 (6th Cir. 2007); United States v. Rodriguez-Pena, 470 F.3d 431, 432 (1st Cir. 2006).
Courts which have considered the interplay between the career offender provisions of the
Guidelines and the recent amendments to the crack cocaine ranges have applied a de novo
standard of review to the district court’s interpretation of the impact of the amendments
on the Sentencing Guidelines and an abuse of discretion standard to the court’s
determination of whether to grant a particular defendant’s motion for a sentence
modification under those amendments. United States v. Sharkey, 543 F.3d 1236, 1238-39
(10th Cir. 2008); United States v. Moore, 541 F.3d 1323, 1327 (11th Cir. 2008). We will
do the same.

                                             -5-
the amendments to the crack cocaine Guidelines would alter the applicable Guideline

range to 92-115 months.

       Nabried’s argument fails because the District Court did apply § 4B1.1(b)(1) in

sentencing him. We stated in his earlier appeal that the “District Court determined that

the career offender provision of the Guidelines was applicable,” Nabried, 199 Fed. Appx.

at 104, and Nabried may not use this appeal as a vehicle to relitigate that point. His

assertion that the District Court granted his motion for a downward departure from the

career offender provision is baseless.4 While the District Court indicated that it was

somewhat swayed by defense counsel’s arguments at sentencing, it made sufficiently

clear, both at sentencing and in its order denying Nabried’s motion for modification of his

sentence, that it imposed a non-Guideline sentence that took account of Nabried’s career

offender status and the § 3553(a) factors. Because § 4B1.1 of the Sentencing Guidelines,

rather than the crack cocaine provisions in § 2D1.1, was a foundation for Nabried’s

sentence, the District Court correctly concluded that his sentence is not affected by the

amendments to the crack cocaine Guidelines. See Sharkey, 543 F.3d at 1239

(“Amendment 706 had no effect on the career offender Guidelines in § 4B1. 1”); Moore,

541 F.3d at 1327 (refusing to reduce sentence where defendant sentenced as career




       4Even Nabried acknowledges that in the Judgment imposing sentence the District
Court did not check the box required for a departure under § 4A1.3 regarding the
adequacy of criminal history.

                                             -6-
offender because “Amendment 706’s effect on the defendants’ base offense levels would

not lower the sentencing ranges upon which their sentences were based”).

       Additionally, as Nabried concedes, where the original sentence is a non-Guidelines

sentence determined, at least in part, by the court’s evaluation of the § 3553(a) factors, a

“further reduction generally would not be appropriate.” U.S.S.G. § 1B1.10(b)(2)(B). The

District Court clearly imposed a non-Guidelines sentence which it believed satisfied “the

purposes that are set forth in 18 U.SC. § 3553(a).” (App. at 64.) It therefore correctly

refused to reduce Nabried’s sentence.

III.   Conclusion

       Because the District Court correctly interpreted the Guidelines and the recent crack

cocaine amendments, and because the Court did not abuse its discretion in denying

Nabried’s motion, we will affirm its order.




                                              -7-
