                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-15-1995

United States v Thompson
Precedential or Non-Precedential:

Docket 95-5049




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Recommended Citation
"United States v Thompson" (1995). 1995 Decisions. Paper 290.
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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                  NOS. 95-5049, 95-5050, 95-5189



                       UNITED STATES OF AMERICA

                                  v.

                          RUDOLPH THOMPSON,
          Appellant



          On Appeal From the United States District Court
                  For the District of New Jersey
                   D.C. Crim. No. 90-cr-00216-03
                     D.C. Civ. No. 93-cv-02758


            Submitted Under Third Circuit LAR 34.1(a)
                        September 19, 1995

           Before: BECKER, HUTCHINSON,554 Circuit Judges,
                  and LANCASTER,555 District Judge

                      (Filed: November 15, 1995)

                                                  KEVIN MCNULTY,
ESQUIRE
                                                  Office of United
States
                                                   Attorney
                                                  970 Broad Street
                                                  Room 502
                                                  Newark, NJ   07102

                                                  Counsel for Appellee

                                                  PATRICK A. MULLIN,
ESQUIRE
                                                  Third Floor
                                                  25 Main Street
                                                  Court Plaza North
                                                  Hackensack, NJ
07601


                                  1
                                              Counsel for
Appellant




                       OPINION OF THE COURT



PER CURIAM:


                Section 3E1.1 of the United States Sentencing

Guidelines (USSG) instructs:
               (a)       If the defendant clearly demonstrates
                         acceptance of responsibility for his
                         offense, decrease the offense level by 2
                         levels.


Id. at 3E1.1(a) (1994).   Effective November 1, 1992, the Section

was amended to provide an additional third level of reduction for

a defendant with an offense level of 16 or greater who has

assisted the prosecution by
               (1)       timely providing complete information to
                         the    government concerning his own
                         involvement in the offense; or

                (2)       timely notifying authorities of his
                          intention   to enter a plea of guilty,
                          thereby permitting the government to
                          avoid preparing for trial and permitting
                          the court to allocate its resources
                          efficiently.


USSG § 3E1.1(b) (1994) (listed as Amendment No. 459 in Appendix C

to the USSG).

                This sentencing appeal by defendant Rudolph

Thompson presents the question whether Amendment 459, which

became effective approximately 18 months after Thompson was


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sentenced, should be applied retroactively to provide a third

level of reduction to his Guidelines offense level.     The district

court, which sentenced Thompson to a term of 108 months

imprisonment, held that it did not, and denied Thompson's request

for a one-level reduction in his sentence pursuant to the

Guideline amendment.   Following the holdings of every other

circuit that has addressed the retroactivity question, we agree,

and hence we affirm.

                                 I.

               Thompson pled guilty to a one-count information

charging him with conspiracy to possess with intent to distribute

cocaine in violation of 21 U.S.C. § 841(a)(1).   After reviewing

the Presentence Report, the district court found an adjusted

offense level of 32, subject to a two-level reduction pursuant to

§ 3E1.1 for acceptance of responsibility.   The total offense

level of 30, combined with Thompson's Criminal History Category

of II, produced a sentencing range of 108-135 months.

               Thompson moved the district court for the

additional level of reduction for acceptance of responsibility

pursuant to Amendment 459, but the district court denied the

motion, finding that Thompson was moving for a retroactive

application of the amendment.    In doing so, the court relied upon

United States v. Solis-Solis, 810 F. Supp. 1231, 1234 (D. Kan.

1993).   This appeal followed.   The district court had

jurisdiction pursuant to 18 U.S.C. §§ 3231, 3582(c).      We have

jurisdiction to review its order pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742.   We exercise plenary review over legal


                                 3
questions concerning the proper interpretation of the Sentencing

Guidelines.    U.S. v. Shirk, 981 F.2d 1382, 1394 (3d Cir. 1992).

                                   II.

                    Thompson grounds his claim for an additional,

third level of reduction for acceptance of responsibility on both

the Sentencing Guidelines and 18 U.S.C. § 3582(c)(2).        As we

recently explained, "[W]hen a crime is covered by the Sentencing

Guidelines, the sentence is computed based not only on the

relevant guidelines, but also on the Sentencing Commission's

policy statements and commentary."       U.S. v. Bertoli, 40 F.3d

1384, 1404-05 (3d Cir. 1994).      We must also, therefore, look to

any applicable policy statements.

                    The Sentencing Commission has issued a policy

statement regarding retroactivity of amended guidelines.       It

provides:
                    (a) Where a defendant is serving a term of
                    imprisonment, and the guideline range applicable
                    to that defendant has subsequently been lowered as
                    a result of an amendment to the Guidelines Manual
                    listed in subsection (c) below, a reduction in the
                    defendant's term of imprisonment is authorized
                    under 18 U.S.C. § 3582(c)(2). If none of the
                    amendments listed in subsection (c) is applicable,
                    a reduction in the defendant's term of
                    imprisonment under 18 U.S.C. § 3582(c)(2) is not
                    consistent with this policy statement and is not
                    authorized.

            . . .
                    (c) Amendments covered by this policy statement
                    are listed in Appendix C as follows: 126, 130,
                    156, 176, 269, 329, 341, 371, 379, 380, 433, 454,
                    461, 484, 488, 490, 499 and 506.


U.S.S.G §1B1.10 (1994).



                                    4
                 The applicable statute, 18 U.S.C. § 3582(c)(2),

states in relevant part that "in the case of a defendant who has

been sentenced to a term of imprisonment . . . the court may

reduce the term of imprisonment . . . if such a reduction is

consistent with applicable policy statements issued by the

Sentencing Commission."    The language of the applicable sections

could not be clearer:    the statute directs the Court to the

policy statement, and the policy statement provides that an

amendment not listed in subsection (c) may not be applied

retroactively pursuant to 18 U.S.C. § 3582(c)(2).    Amendment 459

is not listed in 1B1.10(c).    Therefore, by the plain language of

the policy statement, it does not have retroactive effect.

                 Our holding is in accord with the law of the other

circuits.    In fact, eight circuits have relied upon the plain

language of USSG § 3E1.1 and 18 U.S.C. § 3582(c)(2) to hold that

Amendment 459 should not be applied retroactively.    See, e.g.,

U.S. v. Dullen, 15 F.3d 68, 70-71 (6th Cir. 1994) (collecting

cases).     Furthermore, in holding that an amendment specifically

listed in the policy statement at 1B1.10 has retroactive effect,

we cited with approval the opposite conclusion that an amendment

not so listed would not have retroactive effect.     U.S. v.
Marcello, 13 F.3d 752, 757 (3d Cir. 1994) (citing U.S. v.

Rodriguez, 989 F.2d 583 (2d Cir. 1993)).

                  We therefore hold that Amendment 459, amending

USSG § 3E1.1, does not apply retroactively to allow a third level

of reduction in Thompson's sentence.     The judgment of the

district court will be affirmed.


                                  5
 554
     Judge Hutchinson became ill prior to the submission date and
was unable to participate in the decision of this case before his
                       death on October 8, 1995.
 555
     The Honorable Gary L. Lancaster, United States District Judge
for the Western District of Pennsylvania, sitting by designation.
      Although Judge Lancaster is not a judge of this court, his
  participation in this two judge decision is authorized because
    the Chief Judge of this court, by order filed on October 20,
    1995, declared a judicial emergency. See 28 U.S.C. § 46(b).




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