2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-22-2013

USA v. Robert Korbe

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4531

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"USA v. Robert Korbe" (2013). 2013 Decisions. Paper 815.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4531

___________

UNITED STATES OF AMERICA

v.

ROBERT RALPH KORBE, 

Appellant

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal Action Nos. 2-08-cr-00365-016; 2-09-cr-00056-002; 

2-10-cr-00091-001)

District Judge: Honorable Terrence F. McVerry

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 14, 2013

Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

(Opinion filed: May 22, 2013)

___________

OPINION

___________

PER CURIAM

Robert Ralph Korbe, a federal prisoner proceeding pro se, appeals from the 

District Court’s order denying his motion for a reduction in sentence pursuant to 18 

U.S.C. § 3582(c)(2). We will affirm.
2

Korbe pleaded guilty to several counts of possession and distribution of powder 

and crack cocaine, stipulating to a quantity of more than five but less than fifteen 

kilograms of powder cocaine. Based on the Presentence Investigation Report, Korbe’s 

total offense level was 31 with a Criminal History Category of VI, resulting in an 

advisory Guidelines range of 188 to 235 months’ imprisonment.1 However, after the 

Government filed a notice of prior conviction pursuant to 21 U.S.C. § 851, Korbe became

subject to a statutory mandatory minimum sentence of 240 months’ imprisonment for his 

powder cocaine conviction.

2

 At sentencing, the Government’s request for an upward 

variance was granted and Korbe received a sentence of 300 months’ imprisonment. We 

affirmed. United States v. Korbe, 452 F. App’x 177, 180 (3d Cir. 2011). Korbe’s 

subsequent motion for a reduction in sentence, based on the retroactive application of 

Amendment 750, was denied. He timely appealed. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s 

interpretation of the Sentencing Guidelines de novo. United States v. Mateo, 560 F.3d 

152, 154 (3d Cir. 2009). We review a district court’s ultimate decision to deny a motion 

pursuant to § 3582 for abuse of discretion. Id.

A district court must first determine whether a defendant’s sentence was based on 

a sentencing range “that has subsequently been lowered by the Sentencing Commission,” 

 

1 Korbe’s base offense level would have been 32 based solely on the quantity of powder 

cocaine. U.S.S.G. § 2D1.1(c)(4).

2 A crime involving five kilograms or more of powder cocaine carries a mandatory 

minimum sentence of ten years (120 months). 21 U.S.C. § 841(b)(1)(A)(ii)(II). That was 

doubled in Korbe’s case due to his prior conviction. 
3

18 U.S.C. § 3582(c)(2), and that a reduction is consistent with the policy statements in 

U.S.S.G. § 1B1.10. Dillon v. United States, 130 S. Ct. 2683, 2691 (2010). If so, the 

district court may then consider whether the authorized reduction is warranted based on 

the factors set forth in § 3553(a). Id. The comments accompanying § 1B1.10 state that

a reduction in the defendant’s term of imprisonment is not 

authorized . . . and is not consistent with this policy statement 

if . . . an amendment . . . is applicable to the defendant but the 

amendment does not have the effect of lowering the 

defendant’s applicable guideline range because of the 

operation of another . . . statutory provision (e.g., a statutory 

mandatory minimum term of imprisonment).

U.S.S.G. § 1B1.10 application note 1. 

We agree with the District Court that Korbe’s sentence was not based on a 

Guidelines range that was subsequently lowered by the Sentencing Commission. Though 

Amendment 750 lowered the base offense levels for crack cocaine quantities listed in 

U.S.S.G. § 2D1.1, Korbe’s 240 month statutory mandatory minimum sentence was

independently based on his powder cocaine offenses. Thus, Amendment 750 could not 

have the effect of lowering Korbe’s applicable Guidelines range because the mandatory 

minimum for his powder cocaine conviction was unaffected by that amendment. United 

States v. Doe, 564 F.3d 305, 312 (3d Cir. 2009). The District Court did not abuse its 

discretion in denying Korbe’s motion, as his sentence was not based on a range that was 

subsequently lowered and a reduction would have been inconsistent with the policy 

statements.

3

 We will, therefore, affirm the judgment of the District Court. 

 

3 We have considered Korbe’s additional arguments and, as the Government correctly 
4

 

explains in its brief, they afford no basis for relief under the limited remedy made 

available to defendants in a § 3582(c)(2) proceeding.