Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2007

McMillan v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3472




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ALD-68                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3472
                                      ___________

                                ULYSSES MCMILLAN,
                                                            Appellant
                                        v.
                           UNITED STATES OF AMERICA
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D.C. Civil No. 03-cr-00398)
                        District Judge: Honorable James T. Giles
                      ____________________________________

      Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4
               and I.O.P. 10.6 and/or For a Certificate of Appealability

       Before:     SLOVITER, FISHER AND HARDIMAN, CIRCUIT JUDGES.
                         (Opinion filed: December 13, 2007)
                                     _________

                                         OPINION
                                        _________
PER CURIAM

       Ulysses McMillan appeals the District Court’s orders denying his motion to reduce

his sentence under 18 U.S.C. § 3582(c)(2) and to correct his sentence pursuant to Fed. R.

Crim. P. 36, as well as his motion for reconsideration. Because this appeal presents no

substantial question, we will summarily affirm the judgment of the District Court.

       In October 2003, McMillan pled guilty, pursuant to a plea agreement, to

possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(c), and to carrying a firearm during a drug trafficking crime in violation of 18

U.S.C. § 924(c). McMillan was sentenced in January 2004 as a career offender to 262

months in prison, a sentence at the lower end of the applicable guideline range of 262-327

months imprisonment. Despite the fact that McMillan explicitly agreed in the plea

agreement that he would not appeal or collaterally challenge his sentence if the court did

not impose a sentence that exceeded the statutory maximum (which, in this case, was life

imprisonment), McMillan filed an appeal to this Court. The government, in turn, filed a

motion to enforce the appellate waiver and to dismiss McMillan’s appeal. In an order

dated July 15, 2004, we granted the government’s motion and dismissed McMillan’s

appeal for lack of jurisdiction. See C.A. No. 04-1227. We also denied his petition for en

banc rehearing, wherein he challenged the constitutionality of the Sentencing Guidelines

under Blakely v. Washington, 

(2004), and the ability of a sentencing judge

to select and apply the career offender sentencing range set forth in U.S.S.G § 4B1.1

given the principles espoused by the Supreme Court in Apprendi v. New Jersey, 

(2000). The Supreme Court likewise denied McMillan’s petition for a writ of

certiorari on February 22, 2005. McMillan v. United States, 

(2005).

       McMillan thereafter sought to challenge his sentence by filing a motion pursuant

to 28 U.S.C. § 2255. In his § 2255 motion, McMillan argued that he was entitled to

resentencing based on the Supreme Court’s decision in United States v. Booker, 

(2005), and that the District Court erroneously departed upward from an otherwise

applicable guideline range because his convictions in the New Jersey state court were

calculated as four separate offenses rather than a single prior offense. McMillan further

                                              2
asserted that counsel rendered ineffective assistance insofar as counsel did not fully

advise him of the consequences of his appellate waiver, failed to advise him of his rights

pursuant to Apprendi, and failed to fully investigate his guilty plea in New Jersey state

court. In a Judgment Order entered on September 2, 2005, the District Court determined

that McMillan was not entitled to collateral relief from his sentence and denied his § 2255

motion. The District Court concluded that McMillan knowingly, voluntarily and

expressly waived his right to collaterally attack his sentence, and that enforcing the

waiver would not result in a miscarriage of justice. Moreover, the District Court

concluded that, even if it could reach the merits of McMillan’s claims, it would find each

of them to be without merit. McMillan did not appeal the District Court’s order disposing

of his § 2255 motion.

       Instead, McMillan waited nearly two years and filed the underlying motion for a

reduction of his sentence pursuant to 18 U.S.C. § 3582(c), arguing that the District Court

was obligated to “rectify his applicable guideline to conform to his offense of conviction”

as mandated by Amendment 591 of the United States Sentencing Guidelines (“U.S.S.G.”)

and recent Supreme Court decisions, including, inter alia, Booker and Apprendi.

McMillan further argued that the District Court was required, pursuant to Fed. R. Crim. P.

36, to correct a “clerical error” by the United States Probation Office in his Pre-Sentence

Investigation Report classifying him as a career offender on the basis of his state court

convictions and calculating his sentencing exposure accordingly. The District Court

summarily denied McMillan’s § 3582 and Rule 36 motions as frivolous, noting that the

claims raised therein were addressed by the court in its order denying his § 2255 motion

                                              3
and are wholly without merit. The court denied his motion for reconsideration as well,

and this appeal followed.

       We agree with the District Court’s decision to summarily deny McMillan relief,

and similarly dispose of his appeal. Summary action is appropriate if there is no

substantial question presented by the appeal. See Third Circuit LAR 27.4. The District

Court properly concluded that McMillan was not merely attempting to have a clerical

error corrected, and that the substantive allegations underlying his claims were addressed

in its order denying the § 2255 motion and were not appropriately advanced in a § 3582

motion. Moreover, it committed no abuse of discretion in denying McMillan’s

reconsideration motion. See Max’s Seafood Café v. Quinteros, 

, 673 (3d

Cir. 1999).

       We note that, as a general matter, a court cannot modify a term of imprisonment

after it has been imposed without specific authorization. See, e.g., United States v. Deleo,

, 301 (3d Cir. 1981). McMillan argues that his sentence should be reduced

based on Amendment 591 of the Sentencing Guidelines. While under 18 U.S.C. §

3582(c)(2), a District Court may reduce a sentence “in the case 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 . . .,” Amendment 591 became

effective November 1, 2000, more than three years before McMillan was sentenced.

Additionally, Amendment 591 changed the language of U.S.S.G. §§ 1B1.1(a) and

1B1.2(a) which are used to determine the guideline to be applied to the offense of

conviction. See United States v. Diaz, 

, 301-02 (3d Cir. 2001). McMillan,

                                             4
however, was sentenced as a career offender. The offense level and criminal history for a

career offender are determined using U.S.S.G. § 4B1.1.

       McMillan’s argument for resentencing under Booker fares no better. While the

effect of Booker was to make the Sentencing Guidelines 

,

Booker did not result in the amendment of any sentencing range. Thus, Booker does not

provide a basis for relief under § 3582(c)(2). See, e.g., Cortorreal v. United States, 

, 744 (2d Cir. 2007); United States v. Price, 

, 1007 (10th

Cir.2006); United States v. Moreno, 

, 1220 (11th Cir. 2005) (“Booker is a

Supreme Court decision, not a retroactively applicable guideline amendment by the

Sentencing Commission. Therefore, Booker is inapplicable to § 3582(c)(2) motions.”).

Cf. United States v. McBride, 

, 61 (3d Cir. 2002) (holding that Apprendi did

not provide a basis for relief under § 3582(c)(2) because it was unrelated to any change in

the Sentencing Guidelines).

       Accordingly, for the foregoing reasons, we will summarily affirm the District

Court’s judgment denying McMillan relief under both § 3582 and Rule 36. See Third

Circuit I.O.P. 10.6.1




   1
     We note that the Clerk issued a letter dated August 28, 2007, advising the parties
that we would consider whether a certificate of appealability is required for this appeal.
A certificate of appealability is required where the appeal is taken from “the final order in
a proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). Although some of
McMillan’s arguments reflect an attempt to challenge his sentence, any such attempts in
the context of a motion for reduction of sentence under § 3582(c)(2) are prohibited.
Having reviewed the District Court record, we do not consider the District Court’s order
as the final order in a § 2255 proceeding. Accordingly, we conclude that a certificate of
appealability is not required.

                                              5