                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3032




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"USA v. Gill" (2003). 2003 Decisions. Paper 443.
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                                                                     NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        No: 02-3032

                            UNITED STATES OF AMERICA

                                              v.

                                    BURRELL C. GILL
                                              Appellant

          On Appeal from the United States District Court for the Virgin Islands
                              (Criminal No. 90-cr-00165)
              District Court Judge: Hon. Raymond L. Finch, Chief Judge

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     April 29, 2003

      Before: ROTH, M cKEE, Circuit Judges, and COWEN, Senior Circuit Judge

                                  (Filed: June 23, 2003 )

                                OPINION OF THE COURT

PER CURIAM.

       Burrell Gill appeals the district court’s denial of his motion for a reduction of

sentence under to 18 U.S.C. §3582(C)(2). Our review of legal questions concerning the

proper interpretation of the Sentencing Guidelines is plenary. United States v. Thompson,

70 F.3d 279, 280 (3d Cir. 1995). For the reasons that follow, we will affirm.

       Inasmuch as we write only for the parties, we need not recite the factual

background of this case. Gill argues that the district court erred by failing to retroactively

apply United States Sentencing Guideline Amendments 500 and 518 in deciding his
motion for a reduction of sentence. The applicable statute, 18 U.S.C. §3582(C)(2),

provides in relevant part, that

       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), upon motion of the defendant or the Director of the Bureau
       of Prisons, or on its own motion, the court may reduce the term of
       imprisonment . . . if such a reduction is consistent with applicable
       policy statements issued by the Sentencing Commission.


18 U.S.C. §3582(C)(2) (2003). The Sentencing Commission’s most recent policy

statement regarding the retroactivity of amended guidelines states that:

       (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 thus 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, 505, 506, 516, 591, 599, and
       606.


U.S.S.G. § 1B1.10 (2003).1 Since Amendments 500 and 518 are not listed in subsection

(C), neither may be applied retroactively pursuant to §3582(C)(2). We addressed a



   1
    In reaching our decision, we note that our analysis is the same whether we apply the
2003 policy statement or the 2002 policy statement. Gill’s motion was filed in June 2002
and denied a month later. The last change to the policy statement was made in 2000.

                                              2
similar issue in Thompson. There, we held that Amendment 459 does not apply

retroactively on a §3582(C)(2) motion. 70 F.3d 279, 281 (3d Cir. 1995). We noted that

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).” Id.

Here, as in Thompson, the plain language of the Sentencing Commission’s policy

statement precludes our applying these amendments retroactively. 2 Inasmuch as

Amendments 500 and 518 are not listed in subsection (C), we must affirm the decision of

the district court.




   2
     Gill, in arguing for retroactivity, relies on United States v. Marmolejos, 140 F.3d 488,
491 (3d Cir. 1998) which noted that “courts can give retroactive effect to a clarifying (as
opposed to substantive) amendment regardless of whether it is listed in U.S.S.G.
§1B1.10.” However, unlike Gill, in Marmolejos the retroactivity question was raised by
the defendant’s motion for habeas relief under 28 U.S.C. §2255. But see United States v.
Edwards, 309 F.3d 110, 112 (3d Cir. 2002) (relying on Marmolejos and considering
whether a Sentencing Guideline amendment was substantive or clarifying before deciding
that the amendment was not retroactively applicable).

                                              3
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