United States v. Robert Atkins

BLD-054 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-2796
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ROBERT ATKINS, aka Bobby,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-18-cr-00133-001)
District Judge: Cynthia M. Rufe
____________________________________
Submitted on Appellee’s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 15, 2022
Before: AMBRO, KRAUSE, and PORTER, Circuit Judges
(Opinion filed: December 29, 2022)
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OPINION *
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PER CURIAM
In September 2019, the appellant, Robert Atkins, pleaded guilty to five counts of
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
distribution of fentanyl, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and one
count of distribution of fentanyl within 1,000 feet of a school, in violation of 21 U.S.C.
§ 860(a). The District Court determined that he was a career offender under the United
States Sentencing Guidelines and sentenced him to 180 months of imprisonment,
followed by six years of supervised release. Atkins did not appeal or move to vacate his
sentence pursuant to 28 U.S.C. § 2255.
In July 2022, Atkins filed a pro se motion for compassionate release pursuant to
18 U.S.C. § 3582(c)(1). He asserted that, under the First Step Act of 2018, he should not
have been designated a career offender or subject to an enhancement under 21 U.S.C.
§ 851. The District Court determined, inter alia, that these claims fall outside the scope
of 18 U.S.C. § 3582(c)(1) and denied the motion without prejudice to Atkins raising them
in a motion pursuant to 28 U.S.C. § 2255. Holmes appealed. 1 The Government now
moves for summary affirmance.
We will grant the Government’s motion because “no substantial question is
presented” by this appeal. 3d Cir. L.A.R. 27.4. Section 3582(c)(2) “does not authorize a
resentencing,” but only “permits a sentence reduction within the narrow bounds
established by the [United States Sentencing] Commission.” Dillon v. United States, 560
U.S. 817, 831 (2010); see also United States v. Ortiz-Vega, 744 F.3d 869, 873–74 (3d
Cir. 2014) (“[A] court may not revisit or re-decide guideline applications during a
§ 3582(c)(2) proceeding, but rather must work only with the sentence actually
1
We have jurisdiction pursuant to 28 U.S.C. § 1291.
2
imposed.”). Accordingly, we grant the Government’s motion and will summarily affirm
the District Court’s judgment. 2
2
The Government’s requests for leave to file its motion for summary affirmance out of
time and be excused from filing a brief are granted.
3