On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1-06-cr-00019-001) District Judge: Honorable Joseph H. Rodriguez
The opinion of the court was delivered by: Padova, Senior District Judge.
Submitted Under Third Circuit L.A.R. 34.1(a) on February 7, 2012
Before: SLOVITER and VANASKIE, Circuit Judges, and PADOVA, Senior District Judge*fn1
Appellant Clifton Barney appeals a May 26, 2011 District Court Order denying his motion for a sentence reduction pursuant to 18 U.S.C. ' 3582(c)(2). He argues that the District Court erred in concluding that Amendment 706 to the Sentencing Guidelines, which reduced the base offense level for most cocaine base offenses, did not lower his Aapplicable guideline range@ for purposes of resentencing under 18 U.S.C. ' 3582(c)(2). We have jurisdiction over this appeal pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742(a). For the following reasons, we will affirm.
On June 14, 2006, Appellant pled guilty to a single count of possession with intent to distribute more than five grams of crack cocaine, in violation of 21 U.S.C. " 841(a)(1) and (b)(1)(B). Using the March 27, 2006 edition of the Sentencing Guidelines, the Probation Office determined that the drug quantity table in U.S.S.G. ' 2D1.1(c) (the ACrack Cocaine Guidelines@) produced a base offense level of 32. Appellant had 11 criminal history points, which ordinarily correspond to a criminal history category of V. However, Appellant qualified as a Career Offender under U.S.S.G. ' 4B1.1 (the ACareer Offender Guidelines@) due to two prior felony convictions, one for aggravated assault and one for distribution of a controlled substance. As a result, Appellant=s criminal history category became VI and his base offense level became a 34. See U.S.S.G. ' 4B1.1(b). After a three level reduction for acceptance of responsibility under U.S.S.G. ' 3E1.1, Appellant=s total offense level was a 31, which, combined with Appellant=s criminal history category of VI, resulted in an advisory Guideline range of 188-235 months.
Appellant moved, however, for a downward departure pursuant to U.S.S.G. ' 4A1.3, arguing that the Guidelines overstated his criminal history. The District Court granted that motion. In ascertaining the extent of the departure, the District Court referred to the Crack Cocaine Guidelines and concluded that it was appropriate to depart downward to the base offense level that those Guidelines produced, absent application of the Career Offender Guidelines. The Court also departed downward with respect to the criminal history category, reducing it from VI to V. With the additional reduction for acceptance of responsibility, Appellant=s new total offense level was a 29, which, combined with the reduced criminal history category of V, produced a new advisory Guideline range of 140-175 months. The Court sentenced Appellant within that range to 150 months of imprisonment. On appeal, this Court affirmed Appellant=s sentence.
In April 2010, Appellant filed a motion for a sentence reduction pursuant to 18 U.S.C. ' 3582(c)(2), seeking the benefit of Amendment 706 to the Sentencing Guidelines. The District Court held a hearing on May 18, 2011, and thereafter issued a May 26, 2011 Order, denying Appellant=s motion for a sentence reduction. In an accompanying Memorandum, the District Court explained that Appellant was not eligible for a reduction of sentence because Amendment 706 did not lower Appellant=s Aapplicable guideline range,@ which the Court concluded was the pre-departure range of 188-235 months dictated by the Career Offender Guidelines. Appellant timely appealed the District Court=s order.
Appellant=s sole argument on appeal is that the District Court erred in concluding that his Aapplicable guideline range@ for purposes of determining his eligibility for re-sentencing was the range dictated by the Career Offender Guidelines. In Appellant=s view, his Aapplicable guideline range@ was the range that applied after the U.S.S.G. ' 4A1.3 departure, i.e., the range dictated by the Crack Cocaine Guidelines. He therefore argues that Amendment 706 did reduce his Aapplicable guideline range@ and he is eligible for a sentence reduction under 18 U.S.C. ' 3582(c)(2).
Section 3582(c)(2) provides that:
[I]n 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, after considering the factors set forth in section 3553(a) to the extent that they are ...