2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-22-2012

USA v. Moses

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1388

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Recommended Citation

"USA v. Moses" (2012). 2012 Decisions. Paper 839.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1388

___________

UNITED STATES OF AMERICA

v.

NEAL MOSES, 

 Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 2-00-cr-00454-001)

District Judge: Honorable Robert F. Kelly

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

 June 22, 2012

Before: JORDAN, HARDIMAN and ALDISERT, Circuit Judges

(Opinion filed: June 22, 2012)

_________

OPINION

_________

PER CURIAM

Neal Moses, a federal prisoner proceeding pro se, appeals a District Court order 

that denied his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. We will affirm.1

 1 We have jurisdiction under 28 U.S.C. § 1291. Because the District Court’s decision 

was based on legal analysis and not the exercise of its discretion, we review it de novo. 
2

At the time Moses was sentenced,2 the penalties under 21 U.S.C. 841(b)(1) for the 

quantity of crack involved in his offense set a mandatory twenty-year minimum sentence 

for violators with “a prior conviction for a felony drug offense.” See

Several years after Moses was sentenced, Congress passed the Fair Sentencing Act 

of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010). Section 2 of the Act amended the 

relevant subsection of 21 U.S.C. § 841, 

21 U.S.C. 

§ 841(b)(1) (2001). The District Court docket reflects that the matter of Moses’s prior 

offense was submitted to the jury, which found it to satisfy the requirements of 

§ 841(b)(1). Accordingly, the twenty-year concurrent sentences Moses received reflected 

the minimum possible term to which he could be sentenced.

see 21 U.S.C. § 841(b)(1)(A)(iii) (2012), and led 

to the promulgation of sentencing guidelines reflecting the new statutory scheme. See

United States v. Dixon

Both below and on appeal, Moses argues that he should benefit from these revised 

guidelines (and specifically Amendment 750), which he alleges to have lowered the 

range applicable to his conduct. But as he concedes on page six of his brief, we held in 

, 648 F.3d 195, 197–98 (3d Cir. 2011).

United States v. Reevey

 

See United States v. Sanchez, 562 F.3d 275, 277 (3d Cir. 2009), overruled on other 

grounds as stated in United States v. Carrigan, 446 F. App’x 392, 393 (3d Cir. 2011). As 

the parties are our primary audience, we will forgo a lengthy factual recitation.

, 631 F.3d 110 (3d Cir. 2010), that the revised statutory terms of 

2 See generally United States v. Moses, 58 F. App’x 549 (3d Cir. 2003) (direct appeal); 

United States v. Moses, Criminal Action No. 00-454, 2005 U.S. Dist. LEXIS 12867 (E.D. 

Pa. June 30, 2005), certificate of appealability denied, C.A. No. 05-3531 (order entered 

Mar. 14, 2006) (collateral attack).
3

incarceration were not to be retroactively applicable to persons, such as Moses, whose 

sentencing took place before the statute was enacted. Id. at 114–15. Moses urges us to 

overrule Reevey, which he claims to “overlook[] the intent of Congress.” We decline to 

do so. First, in the Third Circuit, en banc consideration is required to overrule the 

precedent of a prior Panel. See 3d Cir. I.O.P. 9.1; In re Merck & Co. Sec. Litig., 432 

F.3d 261, 274 (3d Cir. 2005). Second, and on a substantive basis, our opinion in Reevey

was in harmony with the “decision[s] of every Court of Appeals to have addressed th[e]

issue” at that time. Id.

The District Court, applying the rule we announced in 

at 115 (collecting cases).

Reevey, correctly held that 

“the original mandatory minimum penalty of 240 months remain[ed] applicable” to 

Moses, forestalling modification of his sentence. United States v. Moses, Criminal 

Action No. 00-454, 2012 U.S. Dist. LEXIS 10029, at *9 (E.D. Pa. Jan. 27, 2012). As we 

are in full accord, we will affirm its order.