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 1998-01

United States v. McGill ( 1998 )


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  • UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.                                                                      No. 97-4099
CARLOS EDWIN MCGILL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-90-454-WMN)
Submitted: December 30, 1997
Decided: January 26, 1998
Before HALL and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William B. Purpura, Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, John V. Geise, Assistant United
States Attorney, Barbara S. Skalla, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Carlos Edwin McGill was sentenced in 1992 to a term of 235
months imprisonment after he was convicted on two charges of traf-
ficking in crack cocaine. In 1994, Amendment 505 to the federal sen-
tencing guidelines reduced the offense level applicable to his offense.
The amendment was retroactive. See U.S. Sentencing Guidelines
Manual § 1B1.10(c) (1995). McGill moved for a sentence reduction
under
    18 U.S.C.A. § 3582
    (c)(2) (West Supp. 1997), and also asked
for application of the safety valve provision added since his sentenc-
ing by Amendments 509 and 515. See USSG§§ 2D1.1(b)(4), 5C1.2.
Amendments 509 and 515 were not made retroactive by the Sentenc-
ing Commission. See USSG § 1B1.10(c). At a hearing on McGill's
motion to reduce his sentence under § 3582(c)(2), the district court
held that the safety valve provision was not applicable and that
McGill would not qualify for a reduction under the safety valve provi-
sion even if it was available to him. The court reduced McGill's
offense level and imposed a sentence of 188 months imprisonment,
the low point of the new guideline range. McGill appeals, contending
that he was entitled to application of the guidelines in effect on the
day he was resentenced and to a reduction under the safety valve pro-
vision. We affirm.
Pursuant to § 3582(c)(2), the district court may reduce a sentence
previously imposed when the sentencing range is later lowered by the
Sentencing Commission "if such a reduction is consistent with the
applicable policy statements issued by the Sentencing Commission."
The applicable policy statement is USSG § 1B1.10, which permits a
sentence reduction when the defendant's guideline range has been
lowered as a result of an amendment listed in subsection (c), but not
otherwise. The commentary further states: "In determining the
amended guideline range . . . the court shall substitute only the
amendments listed in subsection (c) for the corresponding guideline
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provisions that were applied when the defendant was sentenced. All
other guideline application decisions remain unaffected." USSG
§ 1B1.10, comment. (n.2). The district court thus may consider a
reduction in sentence pursuant to a collateral motion under
§ 3582(c)(2) only when the relevant amendment is specifically made
retroactive and is listed in USSG § 1B1.10(c). See United States v.
Drath,
    89 F.3d 216
    , 217-18 (5th Cir. 1996). Consequently, a reduc-
tion in sentence pursuant to § 3582(c)(2) is not a de novo resentencing
under the guidelines in effect on that date. See United States v.
Cothran,
    106 F.3d 1560
    , 1562 (11th Cir. 1997); United States v.
Adams,
    104 F.3d 1028
    , 1030-31 (8th Cir. 1997); United States v.
Torres,
    99 F.3d 360
    , 361 (10th Cir. 1996), cert. denied, ___ U.S. ___,
    65 U.S.L.W. 3630
     (U.S. Mar. 17, 1997) (No. 96-7743). The district
court correctly determined that the safety valve provision was
unavailable to McGill. We need not consider whether he would have
qualified for the reduction had it been available.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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