1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-15-1995

United States v Thompson

Precedential or Non-Precedential:

Docket 95-5049

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Recommended Citation

"United States v Thompson" (1995). 1995 Decisions. Paper 290.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/290
1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

NOS. 95-5049, 95-5050, 95-5189 

 

UNITED STATES OF AMERICA 

v. 

RUDOLPH THOMPSON, 

 Appellant

 

On Appeal From the United States District Court 

For the District of New Jersey 

D.C. Crim. No. 90-cr-00216-03 

D.C. Civ. No. 93-cv-02758 

 

Submitted Under Third Circuit LAR 34.1(a) 

September 19, 1995 

Before: BECKER, HUTCHINSON,554 Circuit Judges, 

and LANCASTER,555 District Judge

(Filed: November 15, 1995) 

 KEVIN MCNULTY, 

ESQUIRE 

 Office of United 

States 

 Attorney 

 970 Broad Street 

 Room 502 

 Newark, NJ 07102 

 

 Counsel for Appellee

 

 PATRICK A. MULLIN, 

ESQUIRE 

 Third Floor 

 25 Main Street 

 Court Plaza North 

 Hackensack, NJ 

07601 
2 

 Counsel for 

Appellant

 

OPINION OF THE COURT 

 

PER CURIAM: 

 Section 3E1.1 of the United States Sentencing 

Guidelines (USSG) instructs: 

(a) If the defendant clearly demonstrates 

acceptance of responsibility for his 

offense, decrease the offense level by 2 

levels. 

Id. at 3E1.1(a) (1994). Effective November 1, 1992, the Section 

was amended to provide an additional third level of reduction for 

a defendant with an offense level of 16 or greater who has 

assisted the prosecution by 

 (1) timely providing complete information to 

the government concerning his own 

involvement in the offense; or 

 (2) timely notifying authorities of his 

intention to enter a plea of guilty, 

thereby permitting the government to 

avoid preparing for trial and permitting 

the court to allocate its resources 

efficiently. 

USSG § 3E1.1(b) (1994) (listed as Amendment No. 459 in Appendix C 

to the USSG). 

 This sentencing appeal by defendant Rudolph 

Thompson presents the question whether Amendment 459, which 

became effective approximately 18 months after Thompson was 
3 

sentenced, should be applied retroactively to provide a third 

level of reduction to his Guidelines offense level. The district 

court, which sentenced Thompson to a term of 108 months 

imprisonment, held that it did not, and denied Thompson's request 

for a one-level reduction in his sentence pursuant to the 

Guideline amendment. Following the holdings of every other 

circuit that has addressed the retroactivity question, we agree, 

and hence we affirm. 

I. 

 Thompson pled guilty to a one-count information 

charging him with conspiracy to possess with intent to distribute 

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

the Presentence Report, the district court found an adjusted 

offense level of 32, subject to a two-level reduction pursuant to 

§ 3E1.1 for acceptance of responsibility. The total offense 

level of 30, combined with Thompson's Criminal History Category 

of II, produced a sentencing range of 108-135 months. 

 Thompson moved the district court for the 

additional level of reduction for acceptance of responsibility 

pursuant to Amendment 459, but the district court denied the 

motion, finding that Thompson was moving for a retroactive 

application of the amendment. In doing so, the court relied upon 

United States v. Solis-Solis, 810 F. Supp. 1231, 1234 (D. Kan. 

1993). This appeal followed. The district court had 

jurisdiction pursuant to 18 U.S.C. §§ 3231, 3582(c). We have 

jurisdiction to review its order pursuant to 28 U.S.C. § 1291 and 

18 U.S.C. § 3742. We exercise plenary review over legal 
4 

questions concerning the proper interpretation of the Sentencing 

Guidelines. U.S. v. Shirk, 981 F.2d 1382, 1394 (3d Cir. 1992). 

II. 

 Thompson grounds his claim for an additional, 

third level of reduction for acceptance of responsibility on both 

the Sentencing Guidelines and 18 U.S.C. § 3582(c)(2). As we 

recently explained, "[W]hen a crime is covered by the Sentencing 

Guidelines, the sentence is computed based not only on the 

relevant guidelines, but also on the Sentencing Commission's 

policy statements and commentary." U.S. v. Bertoli, 40 F.3d 

1384, 1404-05 (3d Cir. 1994). We must also, therefore, look to 

any applicable policy statements. 

 The Sentencing Commission has issued a policy 

statement regarding retroactivity of amended guidelines. It 

provides: 

(a) Where a defendant is serving a term of 

imprisonment, and the guideline range applicable 

to that defendant has subsequently been lowered as 

a result of an amendment to the Guidelines Manual 

listed in subsection (c) below, a reduction in the 

defendant's term of imprisonment is authorized 

under 18 U.S.C. § 3582(c)(2). If none of the 

amendments listed in subsection (c) is applicable, 

a reduction in the defendant's term of 

imprisonment under 18 U.S.C. § 3582(c)(2) is not 

consistent with this policy statement and is not 

authorized. 

 . . . 

 (c) Amendments covered by this policy statement 

are listed in Appendix C as follows: 126, 130, 

156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 

461, 484, 488, 490, 499 and 506. 

U.S.S.G §1B1.10 (1994). 
5 

 The applicable statute, 18 U.S.C. § 3582(c)(2), 

states in relevant part that "in the case of a defendant who has 

been sentenced to a term of imprisonment . . . the court may 

reduce the term of imprisonment . . . if such a reduction is 

consistent with applicable policy statements issued by the 

Sentencing Commission." The language of the applicable sections 

could not be clearer: the statute directs the Court to the 

policy statement, and the policy statement provides that an 

amendment not listed in subsection (c) may not be applied 

retroactively pursuant to 18 U.S.C. § 3582(c)(2). Amendment 459 

is not listed in 1B1.10(c). Therefore, by the plain language of 

the policy statement, it does not have retroactive effect. 

 Our holding is in accord with the law of the other 

circuits. In fact, eight circuits have relied upon the plain 

language of USSG § 3E1.1 and 18 U.S.C. § 3582(c)(2) to hold that 

Amendment 459 should not be applied retroactively. See, e.g., 

U.S. v. Dullen, 15 F.3d 68, 70-71 (6th Cir. 1994) (collecting 

cases). Furthermore, in holding that an amendment specifically 

listed in the policy statement at 1B1.10 has retroactive effect, 

we cited with approval the opposite conclusion that an amendment 

not so listed would not have retroactive effect. U.S. v. 

Marcello, 13 F.3d 752, 757 (3d Cir. 1994) (citing U.S. v. 

Rodriguez, 989 F.2d 583 (2d Cir. 1993)). 

 We therefore hold that Amendment 459, amending 

USSG § 3E1.1, does not apply retroactively to allow a third level 

of reduction in Thompson's sentence. The judgment of the 

district court will be affirmed. 
6 

 

554Judge Hutchinson became ill prior to the submission date and 

was unable to participate in the decision of this case before his 

death on October 8, 1995. 

555The Honorable Gary L. Lancaster, United States District Judge 

for the Western District of Pennsylvania, sitting by designation. 

Although Judge Lancaster is not a judge of this court, his 

participation in this two judge decision is authorized because 

the Chief Judge of this court, by order filed on October 20, 

1995, declared a judicial emergency. See 28 U.S.C. § 46(b).