Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2009

USA v. Michael Jackson
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2871




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                                                                NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 08-2871



                           UNITED STATES OF AMERICA

                                            v.

                               MICHAEL A. JACKSON,
                                              Appellant


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 4-96-cr-00200-001)
                        District Judge: Honorable Malcolm Muir



                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 5, 2009

             Before: SLOVITER and HARDIMAN, Circuit Judges, and
                          POLLAK*, District Judge

                                  (Filed: April 6, 2009)
                                           ____

                                       OPINION



SLOVITER, Circuit Judge.


                 *
                  Hon. Louis H. Pollak, Senior Judge, United States District
          Court for the Eastern District of Pennsylvania, sitting by
          designation.
       Appellant Michael A. Jackson appeals the District Court’s denial of his motion for

a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We will affirm.

                                              I.

       In 1997, Jackson was convicted by a jury of conspiracy to distribute and possess

with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §

846. Jackson was responsible for approximately 114 kilograms of cocaine powder and

321 grams of cocaine base. Pursuant to the Sentencing Guidelines, these amounts were

converted into equivalent amounts of marijuana so that the quantities of cocaine powder

and cocaine base could be added for purposes of calculating the applicable guidelines

range. U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2D1.1 cmt. n.6.1 Thus,

Jackson was deemed responsible for 29,220 kilograms of marijuana equivalent: 22,800

kilograms of marijuana equivalent for the cocaine powder and 6,420 kilograms of

marijuana equivalent for the cocaine base.

       Based on this calculation, Jackson’s base offense level under U.S.S.G. §

2D1.1(c)(2) was thirty-six. We note that Jackson would have faced the same base offense

level under U.S.S.G. § 2D1.1(c)(2) even if the cocaine base were entirely omitted from

the Guidelines calculation. Jackson’s offense level was increased two levels for

possession of a firearm during the offense, for a total offense level of thirty-eight.

       Jackson was also deemed a career offender, but because his otherwise applicable


                    1
                     Jackson’s sentence was calculated pursuant to the 1995
             edition of the Sentencing Guidelines.

                                              2
offense level was greater than the offense level provided by the career offender guideline,

Jackson’s offense level was not based on the career offender guideline. Under U.S.S.G. §

4B1.1, Jackson had a criminal history category of VI. Thus, Jackson faced a Guidelines

range of 360 months to life imprisonment, and the District Court imposed a bottom-of-

the-range sentence of 360 months.

       Jackson filed a motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction,

relying on Amendment 706 to the Sentencing Guidelines, which generally reduced the

base offense levels for crack cocaine offenses under § 2D1.1(c) by two levels and was

made retroactive by Amendment 713. See U.S.S.G. app. C, amend. 706 (Nov. 1, 2007),

U.S.S.G. app. C, amend. 713 (Mar. 3, 2008). The District Court denied the motion

because, “[a]lthough the offense involved some cocaine base . . . [,] that substance had no

impact on the computation of the sentencing guidelines. If the guideline calculation was

based solely on the quantity of cocaine powder, his total offense level would remain 38

with a guideline imprisonment range of 360 months to life.” App. at 2a.2

                                            II.

       A district court may reduce a term of imprisonment “in the case of a defendant

who has been sentenced to a term of imprisonment based on a sentencing range that has



                   2
                    The District Court had jurisdiction over Jackson’s motion
            pursuant to 18 U.S.C. §§ 3231 and 3582. We have jurisdiction
            pursuant to 28 U.S.C. § 1291. We review de novo a district court’s
            legal conclusions, including its interpretation of the Guidelines.
            See United States v. Wood, 

, 85 (3d Cir. 2008).

                                             3
subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). As

we recently explained, “[t]o be entitled to a reduction of sentence, a defendant’s

sentencing range must have been lowered by recalculation based on the amended base

offense level.” United States v. Mateo, – F.3d – , No. 08-3249, 

, at *2

(3d Cir. Mar. 24, 2009) (emphasis in original). Further, “‘[t]he term “sentencing range”

clearly contemplates the end result of the overall guideline calculus, not the series of

tentative results reached at various interim steps in the performance of that calculus.’” 

original) (quoting United States v. Caraballo, 

, 10 (1st Cir.

2008)). “Therefore, pursuant to the statute, ‘if an amended guideline does not have the

effect of lowering the sentencing range actually used at sentencing, the defendant’s

sentence was not based on that range within the intendment of the statute.’” 

552 F.3d at 10).

       In Mateo, we concluded that a defendant who had pled guilty to a crack cocaine

offense but was sentenced pursuant to the career offender guideline could not obtain a

sentence reduction pursuant to § 3582(c)(2) because “Amendment 706 only affects

calculation under [U.S.S.G.] § 2D1.1(c), and the lowering of the base offense level under

§ 2D1.1(c) has no effect on the application of the career offender offense level required

by § 4B1.1.” 

States v. Sharkey, 

, 1239 (10th Cir. 2008)).

       Jackson, unlike Mateo, was sentenced pursuant to § 2D1.1(c). However, as noted

above, Jackson’s base offense level remains thirty-six based solely on the amount of

cocaine powder for which Jackson was responsible. Amendment 706, which applies only

                                              4
to cocaine base, does not have the effect of lowering Jackson’s sentencing range and

therefore Jackson is ineligible for a sentence reduction under § 3582(c)(2). “Had

Amendment 706 been in effect when [Jackson] was sentenced, ‘that provision would not

have had any effect on the sentencing range actually used . . . . Thus[,] Amendment 706

did not lower [Jackson’s] actual sentencing range.’” Mateo, 

, at *3

(alterations added) (quoting 

).

       Further, this conclusion is consistent with the Sentencing Guidelines. “A

reduction in the defendant’s term of imprisonment is not consistent with this policy

statement and therefore is not authorized under 18 U.S.C. [§] 3582(c)(2) if . . . [a]n

amendment . . . does not have the effect of lowering the defendant’s applicable guideline

range.” U.S.S.G. § 1B1.10(a)(2). “In making such determination, the court shall

substitute only the [applicable] amendments . . . for the corresponding guideline

provisions . . . and shall leave all other guideline application decisions unaffected.”

U.S.S.G. § 1B1.10(b)(1). As noted above, if we substitute Amendment 706 “for the

corresponding guideline provisions” applicable at the time that Jackson’s sentence was

imposed and “leave all other guideline application decisions unaffected,” 

sentencing range remains the same and a reduction is excluded by U.S.S.G. §

1B1.10(a)(2).

       Finally, Jackson’s reliance on United States v. Booker, 

(2005) is

misplaced. As we explained in Mateo: “‘[N]othing in [Booker] purported to obviate the

congressional directive on whether a sentence could be reduced based on subsequent

                                              5
changes in the Guidelines.’” Mateo, 

, at *3 (quoting United States v.

Wise, 

, 221, n.11 (3d Cir. 2008) (first alteration added)). Thus, because

Jackson’s sentencing range was not lowered by Amendment 706 within the meaning of §

3582(c)(2) or the Guidelines, Jackson is ineligible for a sentence reduction.

                                            III.

       For the above-stated reasons, we will affirm the denial of Jackson’s motion for a

reduced sentence.




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