United States v. Donald Jones, 3rd Cir. (2015)

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NOT PRECEDENTIAL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 Courts judgment.
We have jurisdiction over the appeal under 28 U.S.C. 1291. We exercise
plenary review of the District Courts 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 Courts
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 defendants 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).
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 Guidelinesincluding its changes in
response to the FSAretroactive. See United States v. Curet, 670 F.3d 296, 30910 (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 errorhe
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

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