United States v. Royce Brown, Sr. ( 2012 )

BLD-008 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3374
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UNITED STATES OF AMERICA
v.
ROYCE E. BROWN, SR.,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal No. 1-95-cr-00069-001)
District Judge: Honorable Sue L. Robinson
____________________________________
Submitted for Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
October 12, 2012
Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges.
(Filed: October 19, 2012)
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OPINION OF THE COURT
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PER CURIAM.
Royce E. Brown, Sr., a federal prisoner proceeding pro se, appeals from the
District Court’s denial of his motion requesting a reduction in sentence pursuant to 18
U.S.C. § 3582(c)(2). We will summarily affirm.
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I.
The facts being well-known to the parties, we will set forth only those pertinent to
this opinion. In 1996, Brown was convicted of possession with intent to distribute crack
cocaine and unlawful possession of a firearm by a felon. As a career offender pursuant to
U.S.S.G. § 4B1.1, he was sentenced to 360 months imprisonment. We affirmed his
conviction and sentence. (Dkt. No. 147.)
After unsuccessfully pursuing habeas relief, (Dkt. Nos. 186, 193), Brown filed a
motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), relying upon
Sentencing Guideline Amendment 706, (Dkt. No. 196). The District Court denied that
motion, determining that Amendment 706 did not apply to Brown because he was
sentenced as a career offender. (Dkt. No. 200.) We affirmed. United States v. Brown,
369 F. App’x 388, 391 (3d Cir. 2010).
Brown then filed a second § 3582(c)(2) motion, arguing that his sentence should
be reduced on the basis of, among other things1, Amendment 750. The District Court
denied Brown’s motion to the extent that the arguments raised therein were previously
made, and rejected, on appeal. (Dkt. No. 215, pp. 5-6.) As for his reliance on
Amendment 750, the District Court determined that it did not apply to defendants
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The District Court properly recognized that the other Amendments upon which Brown
relied were in effect before he was sentenced. (Dkt. No. 215, p. 6 n.8.)
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sentenced as career offenders and therefore could not be used to reduce his sentence. (Id.
pp. 6-7.) Brown timely appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s
interpretation of the Sentencing Guidelines de novo. United States v. Mateo, 560 F.3d
152, 154 (3d Cir. 2009). We review a district court’s ultimate decision to deny a motion
pursuant to § 3582 for abuse of discretion. Id. We may summarily affirm the decision of
the District Court if no substantial question is presented on appeal. 3d Cir. LAR 27.4 and
I.O.P. 10.6.
To be eligible for a reduction in sentence, a defendant must have “been sentenced
to a term of imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The sentence must
first be “based on” a Guidelines range, and, second, a Guidelines amendment must have
the “effect of lowering” that Guidelines range. United States v. Thompson, 682 F.3d
285, 290 (3d Cir. 2012) (citing Freeman v. United States, 131 S. Ct. 2685, 2700 (2011)
(Sotomayor, J., concurring)).
We first turn to the issue of whether Amendment 750 could serve to lower
Brown’s sentence. To conform to the Fair Sentencing Act of 2010, Amendment 750
lowered the base offense levels for crack cocaine quantities listed in U.S.S.G. § 2D1.1.
However, as a career offender, Brown’s offense level and Guidelines range were based
on the application of U.S.S.G. § 4B1.1. Because Brown was not sentenced based on a
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range that was subsequently lowered by the Commission, he was not eligible for a
reduction under § 3582(c)(2). See Mateo, 560 F.3d at 154-55. The District Court did not
abuse its discretion in denying Brown’s motion.
Brown also argued that he should never have been classified as a career offender.
We previously found that argument to be without merit, Brown, 369 F. App’x at 390, and
see no occasion to revisit it here. Apart from Brown’s reliance on Amendment 750, all of
the other arguments advanced in his second § 3582 motion were previously adjudicated
on appeal. Id. at 390-91. The District Court properly declined to revisit those issues as
well. Finally, Brown’s letter opposing summary affirmance does not advance any basis
not previously considered by us or the District Court.2
III.
There being no substantial question presented on appeal, we will summarily affirm
the District Court’s order and deny Brown’s motion for appointment of counsel. 3d Cir.
LAR 27.4 and I.O.P. 10.6. Brown’s motion to expedite his motion for appointment of
counsel and the Government’s motion in support of summary dismissal are denied as
moot.
2
Brown claims that his arguments are supported by Amendments 741 and 759. His
reliance on those Amendments is misplaced. Amendment 741 reorganized § 1B1.1 to
clarify a three-step approach to sentencing, while Amendment 759 merely implemented
the retroactivity of Amendment 750.
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