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United States v. Dillon

June 10, 2009

UNITED STATES OF AMERICA,
v.
PERCY DILLON, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 93-cr-0084) District Judge: Honorable Alan N. Bloch.

The opinion of the court was delivered by: Fuentes, Circuit Judge

PRECEDENTIAL

Submitted Under Third Circuit L.A.R. 34.1(a) May 19, 2009

Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.

Percy Dillon appeals the District Court's partial denial of his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). In 2008, the United States Sentencing Commission amended the United States Sentencing Guidelines ("Guidelines"), retroactively reducing the base offense level for crack cocaine offenses. The District Court subsequently entered an order reducing Dillon's sentence by two-levels, but held that it lacked authority to reduce Dillon's sentence further. Dillon argues that the District Court erred in failing to recognize that United States v. Booker, 543 U.S. 220 (2005) gave it such authority. For the reasons that follow, we will affirm.*fn1

I.

If Booker did apply in proceedings pursuant to § 3582, Dillon would likely be an ideal candidate for a non-Guidelines sentence. In 1993, Dillon was convicted of conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base in violation of 21 U.S.C. § 846; use of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1).

At the time, the District Court calculated Dillon's offense level to be 38 and his criminal history category to be II. Dillon received two criminal history points: one for misdemeanor marijuana possession and one for misdemeanor resisting arrest. Thus, Dillon's Guidelines range was 322 to 387 months.*fn2

The District Court sentenced Dillon to the bottom of the Guidelines range, 322 months. However, the District Court repeatedly stated that it was constrained by the Guidelines to impose what it believed to be an unreasonable sentence. At Dillon's original sentencing hearing, the District Court noted: "I personally don't believe that you should be serving 322 months[, b]ut I feel I am bound by those Guidelines . . ." App. at 99. The District Court continued: "I don't say to you that these penalties are fair. I don't think they are fair. I think they are entirely too high for the crime you have committed even though it is a serious crime." Id. The District Court also noted that it believed Dillon's sentence to be unreasonable in its Statement of Reasons: "[T]he guidelines range is unfair to the defendant. The Court, however, is bound by the guidelines range." App. at 5.

Following the change in the crack cocaine offense level, Dillon filed a pro se motion for a sentence reduction. The District Court recalculated Dillon's offense level to be 36 and reduced Dillon's sentence to 270 months. Dillon argued that the District Court should apply Booker in resentencing him, but the District Court found that Booker did not apply and that it lacked jurisdiction to grant more than a 2-level sentence reduction.

II.

A court generally may not modify a term of imprisonment once it has become final. 18 U.S.C. § 3582(c). However, 18 U.S.C. § 3582(c)(2) provides 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) . . . the 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.

In Booker, the Supreme Court concluded that the Sixth Amendment requires a jury to find the facts that establish a mandatory floor for a defendant's sentence. 543 U.S. at 229, 244. Following Booker, a sentencing court must calculate a defendant's Guidelines range, but may only use that range as a starting point for determining a reasonable sentence based on an individualized assessment of the factors set forth at 18 U.S.C. § 3553(a). Gall v. United States, 128 S.Ct. 586, 596-97 (2007). Dillon argues that a district court adjusting a sentence pursuant to § 3582(c) must also treat the amended Guidelines range as advisory, and impose a sentence based on the procedures set forth in the Booker line of cases.

We have held that Booker does not affect eligibility for a § 3582(c) sentence reduction. See, e.g., United States v. Doe, 564 F.3d 305, 313-14 (3d Cir. 2009) (holding that defendants who received substantial assistance departures below the statutory mandatory minimum were not eligible for reduction); United States v. Mateo, 560 F.3d 152, 155 (3d Cir. 2009) (holding that defendant sentenced based on ...


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