Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3895




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Recommended Citation
"USA v. McIntosh" (2008). 2008 Decisions. Paper 1768.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1768


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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3895
                                      ___________

                            UNITED STATES OF AMERICA

                                             v.

                                  JAMES MCINTOSH,
                                            Appellant
                                    ______________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                           (D.C. Criminal No. 97-cr-00203-2)
                         District Judge: Honorable Marvin Katz
                                    ________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 10, 2008

           Before: RENDELL, JORDAN AND GARTH, CIRCUIT JUDGES

                                (Filed: January 10, 2008)
                                       ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM

       Appellant, James McIntosh, appeals from the District Court’s orders denying his

motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2), his motion to correct

clerical errors in support of his pending 18 U.S.C. § 3582(c)(2) motion, and his motion

for reconsideration. For the reasons that follow, we will affirm.
       In 1997, McIntosh was convicted in the United States District Court for the

Eastern District of Pennsylvania of conspiracy to commit robbery, in violation of 18

U.S.C. § 1951; robbery, in violation of 18 U.S.C. § 1951; and using and carrying a

firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). At

sentencing, the government argued that, because McIntosh was a career offender, his

offense level should be increased pursuant to U.S. Sentencing Guidelines Manual § 4B1.1

(2000). The District Court agreed and sentenced McIntosh accordingly. McIntosh

appealed. We affirmed his conviction but remanded the case for reconsideration of

whether McIntosh was properly classified as a career criminal for sentencing purposes.

(C.A. No. 98-1252). Upon remand, the government submitted additional evidence of

McIntosh’s prior convictions, and the District Court again sentenced McIntosh as a career

offender. McIntosh appealed, and we affirmed his sentence. (C.A. No. 99-1678).

       On June 21, 2007, McIntosh filed a motion to modify his sentence pursuant to 18

U.S.C. § 3582(c). In his motion, McIntosh argues that, under Amendment 461 to the

Sentencing Guidelines, the District Court misapplied the guidelines involving career

offenders, and that, as a result, he was improperly classified as a career offender.

Thereafter, on July 9, 2007, McIntosh filed a motion to “correct clerical errors” in his

pending 18 U.S.C. § 3582(c) motion, arguing that the District Court should modify his

sentence pursuant to Fed. R. Crim. P. 36 and Fed. R. Civ. P. 60. The District Court

denied both motions. Thereafter, McIntosh filed a timely motion for reconsideration.

The District Court denied reconsideration on September 17, 2007, and McIntosh appeals.

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       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s interpretation and application of the Sentencing Guidelines de novo.

United States v. Yeaman, 

, 456 (3d Cir. 1999).

       Section 3582(c)(2) permits a court to reduce a defendant’s sentence when the

guideline range under which the defendant was sentenced is subsequently lowered by the

Sentencing Commission. See United States v. McBride, 

, 614 (3d Cir.

2002). Amendment 461 to the U.S. Sentencing Guidelines became effective on

November 1, 1992. U.S. Sentencing Guidelines Manual app. C (1992). McIntosh was

sentenced on March 27, 1998, and re-sentenced on July 27, 1999. Accordingly, because

Amendment 461 was in effect when McIntosh was sentenced, § 3582(c)(2) is

inapplicable.1 Among other things, Amendment 461 eliminated a conviction for firearm

possession as a crime of violence for determining when a defendant is a career offender.

However, Amendment 461 does not affect McIntosh’s sentence. Previously, McIntosh

had been convicted of a number of felony offenses sufficient to render him a career

offender without regard to his § 924(c) firearm offense. See United States v. McIntosh,

, 613 (E.D. Pa. 1999).



  1
     In his § 3582(c)(2) motion and in his brief before this Court, McIntosh argues that his
sentence should be reduced in light of the Supreme Court’s decision in Shepard v. United
States, 

(2005). This argument must be raised in a motion pursuant to 28
U.S.C. § 2255. Because McIntosh has previously filed a § 2255 motion with the District
Court, he must seek permission from this Court to file a second or successive § 2255
motion. 28 U.S.C. § 2255. McIntosh has not requested such permission; accordingly, we
will not consider the merits of this argument.

                                             3
       McIntosh also argues that the District Court erred by failing to modify his sentence

pursuant to Fed. R. Crim. P. 36 and Fed. Civ. P. 60. Fed. R. Crim. P. 36 permits a court

to correct a clerical error in a judgment or order entered in a criminal case and Fed. R.

Civ. P. 60 permits a court to grant relief from a judgment or order entered in a civil case.

McIntosh argues that his sentence should be modified because the District Court

incorrectly concluded that he was a career offender. Neither Fed. R. Crim. P. 36 nor Fed.

R. Civ. P. 60 provides for the relief that McIntosh seeks.

       For the foregoing reasons, we will affirm the orders of the District Court.




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