2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-25-2010

USA v. Gregory Roberson

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4066

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HLD-045 (December 2009) NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4066

___________

UNITED STATES OF AMERICA

v.

GREGORY L. ROBERSON,

Appellant

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 99-cr-00080)

District Judge: Honorable James M. Munley

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit LAR 27.4 and I.O.P. 10.6

December 30, 2009

Before: Chief Judge SCIRICA, WEIS and GARTH, Circuit Judges

(Opinion filed: January 25, 2010)

___________

OPINION

___________

PER CURIAM.

Appellant Gregory L. Roberson, proceeding pro se, sought a reduction in

his sentence of imprisonment pursuant to 18 U.S.C. § 3582(c), which the District Court
 According to the Government, while the guideline range is 360 to life, the upper 1

range in this particular case was 1080 months, calculated by combining the statutory

maximum sentence for each of the crimes of which Roberson was convicted.

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denied. For the reasons that follow, we will summarily affirm.

In 2000, following a jury trial in the United States District Court for the

Middle District of Pennsylvania, Roberson was convicted of conspiracy to distribute and

possess with intent to distribute in excess of 50 grams of cocaine base (crack) and

cocaine, and distribution and possession with intent to distribute cocaine base (crack). 

The Court determined his base offense level to be 34, with a 4 level upward adjustment

for his role as an organizer and leader, and a 2 level upward adjustment for possession of

a dangerous weapon, for a total base offense level of 40, with a criminal history category

of VI. This resulted in an imprisonment range of 360 months to life. Roberson was 1

sentenced to a total of 360 months’ imprisonment.

In 2007, the United States Sentencing Commission enacted Amendment

706, which lowered the base offense level for cocaine base (“crack”) offenses, and made

the Amendment retroactive. Roberson thereafter filed a motion seeking a reduction in his

sentence pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides that the

sentencing court may modify 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

subsequently been lowered by the Sentencing Commission

pursuant to 28 U.S.C. 994(o), upon motion of the defendant

or the Director of the Bureau of Prisons, or on its own motion,
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the court may reduce the term of imprisonment, after

considering the factors set forth in section 3553(a) to the

extent that they are applicable, if such a reduction is

consistent with applicable policy statements issued by the

Sentencing Commission.

In determining whether a defendant’s sentence is eligible for such a reduction, the

sentencing court is directed to “determine the amended guideline range that would have

been applicable to the defendant if the amendment(s) to the guidelines listed in subsection

(c) had been in effect at the time the defendant was sentenced. In making such

determination, the court shall substitute only the amendments listed in subsection (c) for

the corresponding guideline provisions that were applied when the defendant was

sentenced and shall leave all other guideline application decisions unaffected.” See U.S.

Sentencing Guidelines § 1B1.10(b).

In his motion, Roberson argued that with a two level reduction, his base

offense level would be 32, resulting in a sentencing range of 210-262 months. However,

Roberson’s calculation omitted the two upward departures, which actually place him at a

total base offense level of 38. As both the Government and the Federal Public Defender

explained to the District Court, under the new Sentencing Guidelines, Roberson remains

in the same sentencing range. Accordingly, the District Court denied Roberson’s motion. 

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

review the District Court’s interpretation of the Sentencing Guidelines de novo and its

decision whether to grant or deny a defendant’s motion to reduce his sentence pursuant to
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§ 3582(c)(2) for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 (3d

Cir. 2009).

 In his opposition to possible summary action, Roberson argues that under

United States v. Booker, 543 U.S. 220 (2005), not only are the sentencing guidelines

advisory rather than mandatory, but so is the prescription of section 3582 that the

sentencing range must have subsequently been lowered before a district court may

consider re-sentencing a defendant. Despite Roberson’s assertion to the contrary, no

court has held as much. In United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007), the

Ninth Circuit held that, in the case of a defendant “whose sentencing range has been

lowered by the Sentencing Commission pursuant to 28 U.S.C. § 944(o),” the district court

may treat the new sentencing range as advisory rather than mandatory in re-sentencing

that defendant. See id. at 1170; but see United States v. Dillon, 572 F.3d 146, 149-50 (3d

Cir. 2009), cert. granted, __ S. Ct. __, 2009 WL 2899562 (Dec. 7, 2009). As we

explained in Mateo, “[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.” 560 F.3d at 154. Because Roberson’s sentencing range was not affected by

Amendment 706, he is not eligible for a reduction in his sentence pursuant to Section

3582(c). Accordingly, the District Court properly denied Roberson’s motion for a

reduction in sentence.
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Based on the foregoing, we conclude that this appeal presents no

“substantial question,” and will summarily affirm the judgment of the District Court. See

3d Cir. LAR 27.4 & I.O.P. 10.6.