United States v. Moses

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-1388
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UNITED STATES OF AMERICA
v.
NEAL MOSES,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-00-cr-00454-001)
District Judge: Honorable Robert F. Kelly
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Submitted Pursuant to Third Circuit LAR 34.1(a)
June 22, 2012
Before: JORDAN, HARDIMAN and ALDISERT, Circuit Judges
(Opinion filed: June 22, 2012)
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OPINION
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PER CURIAM
Neal Moses, a federal prisoner proceeding pro se, appeals a District Court order
that denied his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. We will affirm. 1
1
We have jurisdiction under 28 U.S.C. § 1291. Because the District Court’s decision
was based on legal analysis and not the exercise of its discretion, we review it de novo.
At the time Moses was sentenced, 2 the penalties under 21 U.S.C. 841(b)(1) for the
quantity of crack involved in his offense set a mandatory twenty-year minimum sentence
for violators with “a prior conviction for a felony drug offense.” See 21 U.S.C.
§ 841(b)(1) (2001). The District Court docket reflects that the matter of Moses’s prior
offense was submitted to the jury, which found it to satisfy the requirements of
§ 841(b)(1). Accordingly, the twenty-year concurrent sentences Moses received reflected
the minimum possible term to which he could be sentenced.
Several years after Moses was sentenced, Congress passed the Fair Sentencing Act
of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010). Section 2 of the Act amended the
relevant subsection of 21 U.S.C. § 841, see 21 U.S.C. § 841(b)(1)(A)(iii) (2012), and led
to the promulgation of sentencing guidelines reflecting the new statutory scheme. See
United States v. Dixon, 648 F.3d 195, 197–98 (3d Cir. 2011).
Both below and on appeal, Moses argues that he should benefit from these revised
guidelines (and specifically Amendment 750), which he alleges to have lowered the
range applicable to his conduct. But as he concedes on page six of his brief, we held in
United States v. Reevey, 631 F.3d 110 (3d Cir. 2010), that the revised statutory terms of
See United States v. Sanchez, 562 F.3d 275, 277 (3d Cir. 2009), overruled on other
grounds as stated in United States v. Carrigan, 446 F. App’x 392, 393 (3d Cir. 2011). As
the parties are our primary audience, we will forgo a lengthy factual recitation.
2
See generally United States v. Moses, 58 F. App’x 549 (3d Cir. 2003) (direct appeal);
United States v. Moses, Criminal Action No. 00-454, 2005 U.S. Dist. LEXIS 12867 (E.D.
Pa. June 30, 2005), certificate of appealability denied, C.A. No. 05-3531 (order entered
Mar. 14, 2006) (collateral attack).
2
incarceration were not to be retroactively applicable to persons, such as Moses, whose
sentencing took place before the statute was enacted. Id. at 114–15. Moses urges us to
overrule Reevey, which he claims to “overlook[] the intent of Congress.” We decline to
do so. First, in the Third Circuit, en banc consideration is required to overrule the
precedent of a prior Panel. See 3d Cir. I.O.P. 9.1; In re Merck & Co. Sec. Litig., 432
F.3d 261, 274 (3d Cir. 2005). Second, and on a substantive basis, our opinion in Reevey
was in harmony with the “decision[s] of every Court of Appeals to have addressed th[e]
issue” at that time. Id. at 115 (collecting cases).
The District Court, applying the rule we announced in Reevey, correctly held that
“the original mandatory minimum penalty of 240 months remain[ed] applicable” to
Moses, forestalling modification of his sentence. United States v. Moses, Criminal
Action No. 00-454, 2012 U.S. Dist. LEXIS 10029, at *9 (E.D. Pa. Jan. 27, 2012). As we
are in full accord, we will affirm its order.
3