United States v. Donald Jones , 605 F. App'x 81 ( 2015 )


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  • DLD-224                                                        NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 14-3488
    ___________
    UNITED STATES OF AMERICA
    v.
    DONALD JONES,
    Appellant
    ____________________________________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Crim. No. 08-cr-00007-001)
    District Judge: Honorable C. Darnell Jones, II
    ____________________________________
    Submitted for Possible Summary Action
    Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
    May 28, 2015
    Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges
    (Opinion filed: June 2, 2015)
    _________
    OPINION*
    _________
    PER CURIAM
    Appellant Donald Jones pleaded guilty to possessing crack cocaine with the intent
    to distribute it and related charges and was sentenced to 120 months’ imprisonment in
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
    constitute binding precedent.
    September 2008. Jones was subject to a then-10-year statutory mandatory minimum term
    because 36.98 grams of crack cocaine were involved in his crimes and he had a prior
    felony drug conviction. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006). His sentence was
    affirmed on appeal. See United States v. Jones, C.A. No. 08-4111 (order entered Mar.
    18, 2009).
    Jones mounted multiple unsuccessful post-conviction challenges to his sentence.
    As relevant here, on July 14, 2014, Jones requested reduction of his sentence under 18
    U.S.C. § 3582(c)(2) based on recent amendments to the U.S. Sentencing Guidelines. The
    District Court denied the motion. Jones timely appealed. The Government has requested
    that we summarily affirm the District Court’s judgment.
    We have jurisdiction over the appeal under 28 U.S.C. § 1291. We exercise
    plenary review of the District Court’s interpretation of the Sentencing Guidelines and
    review the denial of Jones’ § 3582(c)(2) motion for abuse of discretion. United States v.
    Mateo, 
    560 F.3d 152
    , 154 (3d Cir. 2009). We may summarily affirm the District Court’s
    decision if an appeal presents no substantial question. 3d Cir. LAR 27.4 and I.O.P. 10.6.
    A district court may reduce the sentence 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 . . . if such a reduction is consistent with
    applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
    § 3582(c)(2). A reduction is not authorized under § 3582(c)(2) if the change to the
    Sentencing Guidelines “does not have the effect of lowering the defendant’s applicable
    2
    guideline range because of the operation of another guideline or statutory provision (e.g.,
    a statutory mandatory minimum term of imprisonment).” U.S. Sentencing Guidelines
    Manual (“U.S.S.G.”) § 1B1.10(a)(2)(B) & cmt. n.1(A); see United States v. Ortiz-Vega,
    
    744 F.3d 869
    , 873 (3d Cir. 2014) (“[I]f a defendant is subjected to a mandatory
    minimum, he or she would not be given a sentence ‘based on a sentencing range that has
    subsequently been lowered.’”)
    In 2010, the Fair Sentencing Act (“FSA”) increased the quantity of crack cocaine
    necessary to trigger the 10-year mandatory minimum for prior felony drug offenders from
    5 grams to 28 grams. See 21 U.S.C. § 841(b)(1)(B)(iii). The Sentencing Commission
    promulgated amendments to conform the Guidelines to the FSA and to make the changes
    apply retroactively. See U.S.S.G. app. C, amends. 750, 759 (2011). 1 Additionally,
    Amendment 782 to the Guidelines, which came into effect on November 1, 2014, and has
    been applied retroactively, reduced by two the base offense levels assigned to specific
    drug quantities. See U.S.S.G. § 2D1.1(c) & app. C. supp., amends. 782, 788 (2014).
    1
    Although Jones cites Amendment 706, it went into effect on November 1, 2007, almost
    one year before Jones’ September 2008 sentencing. Thus, even if a mandatory minimum
    sentence were not at issue, Jones would be ineligible for a sentence reduction based on
    Amendment 706. See 18 U.S.C. § 3582(c)(2) (permitting court to reduce a sentence
    where the applicable sentencing range was “subsequently” lowered). Jones also
    references Amendments 746 and 748, neither of which provides a basis for reducing his
    sentence. Amendment 746 made only technical and conforming changes to provisions
    relevant to drug offenses, and Amendment 748 made temporary changes that were
    permanently re-promulgated, and thus mooted, by Amendment 750. See U.S.S.G. app.
    C, amends. 746, 748 (2010); U.S.S.G. app. C, amend. 750 (2011).
    3
    The District Court did not abuse its discretion in denying Jones’ request for a
    reduced sentence under the FSA and amendments to the Sentencing Guidelines. See
    
    Mateo, 560 F.3d at 154
    . The FSA, which went into effect in 2010, does not apply
    retroactively to Jones, who was sentenced in 2008. See United States v. Reevey, 
    631 F.3d 110
    , 115 (3d Cir. 2010). The Sentencing Commission, however, has exercised its
    authority to make various of its amendments to the Guidelines—including its changes in
    response to the FSA—retroactive. See United States v. Curet, 
    670 F.3d 296
    , 309–10 (1st
    Cir. 2012). Nevertheless, Jones cannot benefit from the Guideline amendments he cites.
    They do not “have the effect of lowering [his] applicable guideline range” because he
    was sentenced to a statutory mandatory minimum term. See 18 U.S.C. § 3582(c)(2);
    U.S.S.G. § 1B1.10 cmt. n.1(A).
    Contrary to Jones’ claim, our decision in Ortiz-Vega does not indicate otherwise.
    The prisoner in Ortiz-Vega was held to be eligible for a sentence reduction because—
    although he would have received a mandatory minimum sentence but for court error—he
    in fact received a sentence lower than the minimum. See 21 U.S.C. § 841(b)(1)(B)(iii)
    (2006); 
    Ortiz-Vega, 744 F.3d at 871
    . Jones, by contrast, received the statutory minimum
    term. Unlike the exceptional scenario presented in Ortiz-Vega, therefore, Jones’
    mandatory-minimum sentence cannot subsequently be lowered by a change to his
    guideline range within the meaning of § 3582(c)(2). See U.S.S.G. § 1B1.10 cmt. n.1(A).
    Accordingly, because we conclude that this appeal presents no substantial
    question, we will summarily affirm the judgment of the District Court.
    4
    

Document Info

Docket Number: 14-3488

Citation Numbers: 605 F. App'x 81

Judges: Fisher, Shwartz, Greenberg

Filed Date: 6/2/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024