Submitted Under Third Circuit LAR 34.1(a) October 5, 2012
Appeal From Denial of Motion for Reduction of Sentence Entered in the United States District Court for the Eastern District of Pennsylvania (Crim. No. 2:03-00148-001) District Judge: Honorable Anita B. Brody
Peter Levin, Esq., Counsel for Appellant
Robert Zauzmer, Esq. Bernardette McKeon, Esq., Counsel for Appellee
Before: FUENTES, FISHER and COWEN, Circuit Judges
FUENTES, Circuit Judge:
We are again asked to determine whether a certain category of defendants is eligible for a sentence reduction under 18 U.S.C. § 3582(c), given the lowered crack-cocaine guidelines issued by the Sentencing Commission under the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010). Specifically, we consider individuals who were designated as career offenders under U.S.S.G. § 4B1.1 and who were granted a downward departure from that designation pursuant to § 4A1.3. We conclude that the Guidelines' definition of "applicable guideline range, " see U.S.S.G., app. C, amend. 759 (Nov. 1, 2011), makes clear that such defendants are not eligible for resentencing. We therefore affirm the District Court's denial of Appellant's motion.
A. Flemming's Original Sentencing
Appellant Glenn Flemming's case is by now familiar to this Court. See United States v. Flemming, 256 F.App'x 453, 454-55 (3d Cir. 2007) (not precedential); United States v. Flemming, 617 F.3d 252, 254-55 (3d Cir. 2010) ("Flemming II "). In brief, Flemming was convicted in 2004 of one count of possessing with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C), and two firearm counts. Based on the offense levels for crack-cocaine set forth in § 2D1.1 of the 2001 edition of the Sentencing Guidelines—applicable to Flemming at the time of his original sentencing—Flemming's Guidelines range was calculated as 92 to 115 months' imprisonment. See Flemming II, 617 F.3d at 255. However, because Flemming had two prior controlled substances convictions, he was classified as a career offender under U.S.S.G. § 4B1.1(a). This enhancement increased his offense level from 24 to 34 and his criminal history category from V to VI, for a Guidelines range of 262 to 327 months.
Flemming moved for a downward departure pursuant to U.S.S.G. § 4A1.3, which in 2001 permitted a sentence departing from the "otherwise applicable guideline range" if the District Court found "reliable information . . . that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." U.S.S.G. § 4A1.3 (2001). The District Court granted the motion and concluded that the proper Guidelines range was calculated by returning to the range based on the crack-cocaine offense levels, 92 to 115 months. Flemming II, 617 F.3d at 255-56. The Court then sentenced Flemming to 175 months in prison (115 months from the Guidelines range, consecutive to a 60 month term for one of the firearm convictions). We affirmed on direct appeal. Flemming, 256 F.App'x at 455-58.
B. First Resentencing And Instant Motion
In 2007, the Sentencing Commission issued Amendment 706, lowering by two the base offense levels for most crack-cocaine offenses, and it later made that amendment retroactive. See U.S.S.G. app. C, amend. 706 (Nov. 1, 2007); U.S.S.G. app. C., amend. 713 (May 1, 2008). Flemming then moved for a reduction of sentence under 18 U.S.C. § 3582(c)(2) on the basis of these amendments. As explained below, we ultimately ruled that Flemming was eligible for a reduction. See Flemming II, 617 F.3d at 272. On remand, the District Court recalculated the Guidelines range as 77 to 96 months based on the new crack-cocaine tables and sentenced Flemming to 137 months in prison (77 months from the Guidelines range and a consecutive 60 month sentence for one of the firearm convictions).
In 2010, the Sentencing Commission issued Amendment 750 to the Guidelines, further lowering the base offense levels for most crack-cocaine offenses by two, and, subsequently, the Sentencing Commission also made that amendment retroactive. See U.S.S.G. app. C, amend. 750 (Nov. 1, 2011); U.S.S.G. app. C., amend. 759 (Nov. 1, 2011). Flemming then filed a ...