2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-19-2012

USA v. Colbert Thompson

Precedential or Non-Precedential: Precedential

Docket No. 11-4120

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Colbert Thompson" (2012). 2012 Decisions. Paper 786.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/786
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-4120

_____________

UNITED STATES OF AMERICA

v.

COLBERT THOMPSON,

Appellant

_______________

APPEAL FROM THE 

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Crim. Action No. 02-140)

District Judge: Honorable Sean J. McLaughlin

_______________

Argued April 26, 2012

_______________
2

Before: GREENAWAY, JR., ROTH, and TASHIMA,

*

Circuit Judges.

(Opinion Filed: June 19, 2012)

Lisa B. Freeland, Federal Public Defender (argued)

Renee D. Pietropaolo, Assistant Federal Public Defender

1500 Liberty Center

1001 Liberty Avenue

Pittsburgh, PA 15222

Counsel for Appellant

Rebecca Ross Haywood, Assistant U.S. Attorney (argued)

David J. Hickton, United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

_______________

OPINION

________________

TASHIMA, Circuit Judge.

 *

 Honorable A. Wallace Tashima, Circuit Judge, 

United States Court of Appeals for the Ninth Circuit, sitting 

by designation.
3

Colbert Thompson pled guilty to distribution of fewer 

than five grams of crack cocaine, but his sentencing range was 

ultimately calculated based on his classification as a career 

offender. After the United States Sentencing Commission 

issued a retroactive amendment to the Sentencing Guidelines 

that lowered the base offense levels for crack cocaine offenses, 

Thompson moved to reduce his sentence pursuant to 18 U.S.C. 

§ 3582(c)(2). He conceded, however, that United States v. 

Mateo, 560 F.3d 152 (3d Cir. 2009), foreclosed his argument, 

and the District Court denied the motion. On appeal, Thompson 

requests that the panel reconsider Mateo in light of Freeman v. 

United States, 131 S. Ct. 2685 (2011). We conclude that Mateo 

remains good law and therefore will affirm.

I

In 2002, Thompson was indicted on two counts, and pled 

guilty to one, of distributing fewer than five grams of crack 

cocaine in violation of 21 U.S.C. § 841(a)(1). Because 

Thompson had two prior felony convictions, he qualified for 

treatment as a career offender under the Guidelines. See U.S. 

Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.1 (2002).1

 1 The Presentence Investigation Report (“PSR”) 

used the 2002 edition of the Guidelines Manual B the version in 

effect at the time of Thompson’s conviction B to calculate 

Thompson’s Guidelines range. Except where noted otherwise, 

that is the edition used in this opinion.
4

This was consequential. The Guideline for career 

offenders has its own sentencing ranges, with offense levels 

determined by reference to the statutory maximum sentences 

authorized for various offenses of conviction. See id. If the 

career offender offense level “is greater than the offense level 

otherwise applicable, the offense level from the [career 

offender] table . . . shall apply.” Id. § 4B1.1(b). In Thompson’s 

case, the career offender offense level was much greater than the 

offense level “otherwise applicable” B that is, the offense level 

for distribution of fewer than five grams of crack cocaine. As 

calculated by the Probation Office in its PSR, Thompson’s crack 

cocaine offense yielded a base offense level of 20, see id.

§ 2D1.1(a)(3), (c)(10); his career offender offense level was 32, 

see id. § 4B1.1(b)(3) (listing an offense level of 32 for offenses 

with a statutory maximum of 20 years’ imprisonment); 21 

U.S.C. § 841(b)(1)(C) (providing for a 20-year maximum for the 

crack cocaine offense to which Thompson pled guilty). Thus, in 

effect, Thompson’s career offender offense level made his crack 

cocaine base offense level irrelevant.

The career offender designation altered Thompson’s 

Guidelines range in another respect, too. According to the PSR, 

Thompson’s prior criminal convictions resulted in a criminal 

history score of 12 and a criminal history category of V. See

U.S.S.G. ch. 5, pt. A (sentencing table). But, as a career 

offender, Thompson was assigned a criminal history category of 

VI. See id. § 4B1.1(b) (mandating a criminal history category of 

VI for career criminals).

Based on a total offense level of 292

 2

 Thompson’s base offense level of 32 was reduced by 

three levels to reflect his acceptance of responsibility. See

and a criminal 
5

history category of VI, Thompson’s Guidelines range was 

determined to be 151 to 188 months’ imprisonment. See id. ch. 

5, pt. A (sentencing table). Had Thompson not been classified 

as a career offender, his Guidelines range would have been 46 to 

57 months. See id.

At sentencing, Thompson’s counsel requested a 

downward departure on the ground that the career offender 

designation over-represented his prior record. The District 

Court denied that request and sentenced Thompson to 151 

months in prison, the bottom of the career offender range. 

Thompson appealed. This Court affirmed the District Court’s 

designation of Thompson as a career criminal and otherwise 

dismissed the appeal. United States v. Thompson, 88 F. App’x 

480 (3d Cir. 2004).

In 2008, the Sentencing Commission retroactively 

reduced the base offense levels for crack cocaine offenses. See

U.S.S.G. app. C, amend. 706 (Nov. 2010) (effective Nov. 1, 

2007) (adjusting Guidelines); id. amend. 713 (effective Mar. 3, 

2008) (making Amendment 706 retroactive). The following 

year, in Mateo, we considered whether a crack cocaine offender 

sentenced as a career offender was eligible for a sentence 

reduction based on the recent Guidelines amendment to crack 

cocaine offense levels. We concluded that he was not. Mateo, 

560 F.3d at 156. To be eligible for a reduction in sentence 

pursuant to § 3582(c)(2), a defendant must have “been 

sentenced to a term of imprisonment based on a sentencing 

range that has subsequently been lowered by the Sentencing 

Commission . . . .” 18 U.S.C. § 3582(c)(2). That means, we 

 

U.S.S.G. § 3E1.1(a).
6

said, that a § 3582(c)(2) reduction is available only if the 

Guidelines amendment has “the effect of lowering the 

sentencing range actually used at sentencing.” Mateo, 560 F.3d 

at 155 (internal quotation marks omitted) (emphasis added). 

The crack cocaine amendment had no effect on Mateo’s 

sentencing range: it altered the calculation of the base offense 

level for his crack cocaine offense, but not the calculation of the 

career offender Guidelines range actually used to compute his 

Guidelines sentence. Accordingly, we held that § 3582(c)(2) 

relief was unavailable to Mateo. Id. at 156.

In 2011, the Supreme Court decided Freeman, a case 

concerning the availability of § 3582(c)(2) relief based on the 

crack cocaine amendment to the Guidelines. After Freeman 

was decided, Thompson filed a motion to reduce his sentence 

under § 3582(c)(2). He conceded that Mateo foreclosed his 

motion, but argued that Mateo should be revisited in light of 

Freeman. Bound by Mateo, the District Court denied 

Thompson’s motion. This timely appeal followed.

II

The District Court had jurisdiction pursuant to 18 U.S.C. 

§ 3231, and we have appellate jurisdiction under 28 U.S.C. 

§ 1291. The single issue in this case B whether, given Freeman, 

we should overrule Mateo B is a question of law over which we 

exercise plenary review. United States v. Flemming, 617 F.3d 

252, 257 (3d Cir. 2010).

III

Thompson concedes that Mateo controls this case. As in 

Mateo, Thompson was convicted of a crack cocaine offense; as 

there, Thompson’s sentencing range was ultimately calculated 
7

based on his status as a career offender rather than as a crack 

cocaine offender. Thompson asks us to reconsider Mateo 

because, he contends, both the plurality and concurring opinions 

in Freeman “called Mateo’s narrow interpretation of the 

statutory meaning of ‘based on’ into question.” We do not 

agree.

In Freeman, the defendant had entered a guilty plea 

pursuant to a plea agreement under Federal Rule of Criminal 

Procedure 11(c)(1)(C). Freeman, 131 S. Ct. at 2691. Such an 

agreement allows the parties to bind the district court to a 

pre-agreed sentence if the court accepts the plea. See Fed. R. 

Crim. P. 11(c)(1)(C) (a sentence or sentencing range 

“recommendation or request [under this provision] binds the 

court once the court accepts the plea agreement”). The question 

in Freeman was whether a sentence imposed pursuant to a Rule 

11(c)(1)(C) plea agreement can be “based on” a sentencing 

range within the meaning of § 3582(c)(2). Freeman, 131 S. Ct. 

at 2691.

The question divided the Court. Justice Kennedy, writing 

for four Justices, delivered the judgment of the Court that a 

defendant can be eligible for such relief. Id. at 2690 (Kennedy, 

J.). But the plurality’s rationale differed markedly from that of 

Justice Sotomayor, who concurred in the judgment and supplied 

the necessary fifth vote. See id. at 2695 (Sotomayor, J., 

concurring). Justice Kennedy wrote that a sentence imposed 

pursuant to a binding Rule 11(c)(1)(C) agreement is still “based 

on” a Guidelines sentencing range, as long as “the sentencing 

range in question was a relevant part of the analytic framework 

the judge used to determine the sentence or to approve the 

agreement.” Id. at 2692-93 (Kennedy, J.). Even in the context 

of a Rule 11(c)(1)(C) agreement, the defendant’s Guidelines 
8

range matters: it informs the judge’s “decision to accept the 

plea,” a decision that entails “impos[ing] the recommended 

sentence.” Id. at 2690; see id. at 2692 (stating that the relevant 

Guidelines policy statement “forbids the district judge to accept 

an 11(c)(1)(C) agreement without first evaluating the 

recommended sentence in light of the defendant’s applicable 

sentencing range”). Justice Kennedy concluded that “the district 

court has authority to entertain § 3582(c)(2) motions when 

sentences are imposed in light of the Guidelines, even if the 

defendant enters into an 11(c)(1)(C) agreement.” Id. at 2693.

Justice Sotomayor took a different approach. In her 

view, “the term of imprisonment imposed by a district court 

pursuant to an agreement authorized by Federal Rule of 

Criminal Procedure 11(c)(1)(C) . . . is ‘based on’ the agreement 

itself, not on the judge’s calculation of the Sentencing 

Guidelines.” Id. at 2695 (Sotomayor, J., concurring). But she 

identified two exceptions: (1) where the plea agreement itself 

“call[s] for the defendant to be sentenced within a particular 

Guidelines sentencing range,” or (2) where it makes clear that 

“the basis for the specified term is a Guidelines sentencing range 

applicable to the offense to which the defendant pleaded guilty.”

Id. at 2697. Because Freeman’s plea agreement clearly stated 

that his sentence would be “determined pursuant to the 

Sentencing Guidelines,” and recommended a sentence that was 

“evident[ly]” based on the figure at the bottom end of Freeman’s 

Guidelines range, his plea agreement satisfied an exception to 

Justice Sotomayor’s general rule. Id. at 2699-2700. She 

therefore concurred in the judgment. Id.
9

IV

As a three-judge panel we are, of course, obliged to 

follow prior decisions of our Court, except “when the prior 

decision conflicts with a Supreme Court decision.” United 

States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009). To determine 

whether Mateo conflicts with Freeman in any respect, we must 

first decide which opinion in Freeman controls.

In a splintered Supreme Court decision where “no single 

rationale explaining the result enjoys the assent of five Justices, 

the holding of the Court may be viewed as that position taken by 

those Members who concurred in the judgments on the 

narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 

(1977) (internal quotation marks and citations omitted). The 

standard established in Marks is designed “to promote 

predictability in the law by ensuring lower court adherence to 

Supreme Court precedent.” Jackson v. Danberg, 594 F.3d 210, 

220 (3d Cir. 2010) (internal quotation marks omitted). Its 

objective is “that, whenever possible, there be a single legal 

standard for the lower courts to apply in similar cases and that 

this standard, when properly applied, produce results with which 

a majority of the Justices in the case articulating the standard 

would agree.” Id. (internal quotation marks omitted). Even so, 

Marks applies only “where one opinion can be meaningfully 

regarded as ‘narrower’ than another and can represent a 

common denominator of the Court’s reasoning.” Berwind Corp. 

v. Comm’r of Soc. Sec., 307 F.3d 222, 234 (3d Cir. 2002) 

(internal quotation marks and citation omitted).
10

Applying these principles, in Jackson, we concluded that 

“the Marks framework applies where one opinion is clearly 

‘narrower’ than another, that is, where one opinion would 

always lead to the same result that a broader opinion would 

reach.” Jackson, 594 F.3d at 222. Justice Sotomayor’s 

concurrence in Freeman conforms to that description. “[T]he 

[Freeman] plurality would surely agree that in every case in 

which a defendant’s [Rule 11(c)(1)(C)] plea agreement satisfies 

the criteria for Justice Sotomayor’s exception by expressly using 

a Guidelines sentencing range applicable to the charged offense

to establish the term of imprisonment, the sentencing judge’s 

decision to accept that sentence is based on the guidelines.” 

United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 

2011) (internal citation, quotation marks, and alterations 

omitted). The converse, however, is not true; sentences imposed 

pursuant to Rule 11(c)(1)(C) plea agreements will frequently be 

eligible for § 3582(c)(2) sentence reductions under Justice 

Kennedy’s framework, but ineligible for reductions under 

Justice Sotomayor’s.

We therefore conclude, as has every other circuit to 

consider the question, that, because Justice Sotomayor’s opinion 

is narrower than Justice Kennedy’s, it expresses the holding of 

the Court. See United States v. Austin, 676 F.3d 924, 926 (9th 

Cir. 2012); Rivera-Martinez, 665 F.3d at 345; United States v. 

Brown, 653 F.3d 337, 340 n.1 (4th Cir. 2011); United States v. 

Smith, 658 F.3d 608, 611 (6th Cir. 2011); United States v. White, 

429 F. App’x 43, 47 (2d Cir. 2011) (unpublished).
11

V

Having decided that Justice Sotomayor’s concurrence is 

the opinion that binds us, we have little difficulty concluding 

that Mateo’s interpretation and application of § 3582(c)(2) is 

consistent with it. Section 3582(c)(2) authorizes a sentence 

reduction if the defendant was sentenced “based on a sentencing 

range that has subsequently been lowered by the Sentencing 

Commission.” 18 U.S.C. § 3582(c)(2). In her concurrence, 

Justice Sotomayor parsed this rule into two parts: first, the 

sentence must be “based on” a Guidelines range; second, a 

Guidelines amendment must have the “effect of lowering” that 

Guidelines range. See Freeman, 131 S. Ct. at 2700 (Sotomayor, 

J., concurring) (internal quotation marks omitted).

Thompson argues that Freeman’s and Mateo’s analyses 

of the first part cannot be squared. We disagree; the two 

decisions simply addressed different questions about that 

condition for relief. Freeman dealt with one interpretive 

question: whether a sentence imposed pursuant to a Rule 

11(c)(1)(C) plea agreement can be “based on” a sentencing 

range at all. See id. Mateo addressed another: whether a 

sentence can be “based on” a sentencing range other than the 

range actually used at sentencing.

In evaluating this question in Mateo, we examined the 

phrase “based on a sentencing range” in its context. See Mateo, 

560 F.3d at 155. We decided that “the 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.” Id. (quoting 

United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008) 

(alterations omitted)). Therefore the salient sentencing range 

was the one “actually used at sentencing.” Id. (internal 
12

quotation marks omitted). To meet the first condition of 

§ 3582(c)(2), a defendant’s sentence must be based on the 

actual, calculated Guidelines range upon which the district court 

relied at sentencing.3

Our reading of § 3582(c)(2) in Mateo is fully consistent 

with Justice Sotomayor’s understanding that a sentence “based 

on” a Guidelines sentencing range is one where the “range 

serves as the basis or foundation for the term of imprisonment.”

See Freeman, 131 S. Ct. at 2695 (Sotomayor, J., concurring). 

Justice Sotomayor did not suggest that more than one Guidelines 

range could serve as the “basis or foundation” of the sentence, 

and the range that fits her definition best is the one at the end of 

the court’s Guidelines calculation, not one of its “tentative 

results” along the way.4

 3 Thompson’s counsel asserted at oral argument that 

Mateo conflated its analysis of the two conditions. That is not 

so. We did say in Mateo that, “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.” Mateo, 560 F.3d at 155 (internal quotation marks 

omitted). But all we meant by this was the rather obvious 

proposition that, if an amendment does not lower the Guidelines 

range used at sentencing, the sentence cannot have been based 

on a “sentencing range that has subsequently been lowered by 

the Sentencing Commission.” Thompson’s real objection is to 

Mateo’s defining the term “sentencing range” as “the end result 

of the overall guideline calculus.” Freeman does not call that 

definition into doubt.

4 In a Rule 28(j) letter submitted after oral argument, 
13

In sum, Justice Sotomayor’s opinion provides no reason 

to overrule Mateo. Mateo therefore remains binding on this 

panel, and it requires that we affirm the District Court’s denial 

of § 3582(c)(2) relief.5

 

Thompson contends that the recently-decided case of United 

States v. Jackson, 2012 WL 1592624 (6th Cir. May 8, 2012), 

supports his contention that Freeman should be read as 

overruling Mateo. In Jackson, the Sixth Circuit held that a 

sentence can be “based on” more than one guidelines sentencing 

range. In that case the District Court departed downward from 

the career offender range and further commented that the 

disparity between crack cocaine and powder cocaine offense 

levels was “untenable” and “really doesn’t have any empirical 

support,” id. at *2, and “reveal[ed] that Jackson’s sentence was 

plainly ‘based on,’ at least in part, the crack guidelines,” id. at 

*3. Assuming without deciding that Jackson was correctly 

decided, it has no bearing on this case. Here, there was no 

downward departure B nothing to signal that the District Court 

had imposed a sentence based on anything other than the 

applicable career offender sentencing range.

5 Thompson also relies on Justice Kennedy’s plurality 

opinion, as well as on Justice Sotomayor’s concurrence. But 

even if the plurality opinion controlled, Thompson would not 

prevail. Justice Kennedy said that “§ 3582(c)(2) modification 

proceedings” should be available “to whatever extent the 

sentencing range in question was a relevant part of the analytic 

framework the judge used to determine the sentence or to 

approve the agreement,” but he recognized that the sentencing 

range was “relevant” only if it had an effect on the sentence. 

Freeman, 131 S. Ct. at 2692-93; id. at 2692 (stating that the 
14

 

point of § 3582(c)(2) is to “isolate whatever marginal effect the 

since-rejected Guidelines range had on the defendant’s 

sentence”). Here, the crack cocaine Guidelines range had no 

effect on Thompson’s sentence. The calculation of Thompson’s 

range may have begun with the relevant crack cocaine offense 

level, but that preliminary step lost all significance once 

Thompson was designated as a career offender and the career 

offender base offense level was applied. Where the starting 

point of the sentencing analysis leads to a dead end, it might in 

some semantic sense be a “part” of the analytic framework used 

to determine the sentence, but it is not a relevant part.

Thompson argues that 18 U.S.C. § 3553(a)(4)(A) made 

the crack cocaine base offense level relevant, by requiring the 

sentencing judge to consider the Guidelines range which would 

have applied had Thompson not been a career offender. We 

disagree. Section 3553(a)(4)(A) does nothing more than instruct 

the sentencing judge to consider the calculated Guidelines range 

for that defendant B which was arrived at here without reference 

to the crack cocaine base offense level. See United States v. 

Ausburn, 502 F.3d 313, 327 n.27 (3d Cir. 2007) (describing 

§ 3553(a)(4) as requiring the sentencing judge to consider the 

“applicable sentencing range”); see also 18 U.S.C. § 3553(b)(1) 

(“the court shall impose a sentence of the kind, and within the 

range, referred to in subsection (a)(4) unless” it finds that certain 

circumstances warrant departure from it).
15

CONCLUSION

For the foregoing reasons, we will affirm the order of the 

District Court denying Thompson’s motion for a reduction of 

sentence pursuant to 18 U.S.C. § 3582(c)(2).