United States v. Thompson ( 1995 )

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Precedential or Non-Precedential: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
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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
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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).
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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.
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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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