2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-22-2009

USA v. Joseph Difilippo

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3798

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3798

___________

UNITED STATES OF AMERICA

v.

JOSEPH DIFILIPPO,

 Appellant

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. Crim. Action No. 05-cr-00071)

District Judge: Honorable James M. Munley

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 21, 2009

Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: July 22, 2009)

___________

OPINION

___________

PER CURIAM

Joseph DiFilippo, proceeding pro se, appeals an order of the United States District

Court for the Middle District of Pennsylvania denying his motion to reduce his sentence

under 18 U.S.C. § 3582©. We will affirm.
2

In February 2005, DiFilippo pled guilty to one count of distribution and possession

with intent to distribute in excess of 50 grams of cocaine base, a crime for which the

maximum statutory penalty is life imprisonment. See 21 U.S.C. §§ 841(a)(1);

841(b)(1)(A)(iii). According to the pre-sentence report, DiFilippo ordinarily would have

faced under the Sentencing Guidelines a total offense level of 29 based on a drug quantity

of more than 50 grams and less than 150 grams of cocaine base, see U.S.S.G.

§ 2D1.1(c)(4), a two-level downward adjustment for acceptance of responsibility, see

U.S.S.G. § 3E1.1(a), and a one-level downward adjustment for timely notice of intention

to plead guilty, see U.S.S.G. § 3E1.1(b). As a career offender, however, DiFilippo’s

sentencing range was determined based on the table in U.S.S.G. § 4B1.1(b). See United

States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). That table provides that a career

offender who faces a maximum penalty of life in prison has an offense level of 37. See

U.S.S.G. § 4B1.1. Factoring in the same three-level downward adjustments, DiFilippo’s

total offense level was 34. With a mandatory Criminal History category of VI, see

U.S.S.G. § 4B1.1(b), DiFilippo faced a Guidelines range of 262 to 327 months of

imprisonment. 

The government moved for a downward departure for substantial assistance under

U.S.S.G. § 5K1.1, recommending a four-level departure to a Guideline range of 168 to

210 months of imprisonment. The District Court agreed that DiFilippo was a career

offender, granted the government’s motion for a downward departure, and ultimately
3

imposed a prison sentence of 120 months, the statutory mandatory minimum. See 21

U.S.C. § 841(b)(1)(A)(iii). DiFilippo then filed a pro se motion under 18 U.S.C.

§ 3582(c)(2) to reduce his sentence pursuant to the Sentencing Commission’s retroactive

amendments to the crack cocaine Guidelines. The District Court denied the motion, and

this appeal followed.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of a district

court’s interpretation of the Guidelines is de novo, see United States v. Sanchez, 562 F.3d

275, 277-78 (3d Cir. 2009), and we review a district court’s exercise of its authority to

reduce a sentence under § 3582(c)(2) for abuse of discretion. See id. at 277 & n.4.

Section 3582(c)(2) authorizes a district court to reduce a term of imprisonment in the case

of a defendant who has been sentenced based on a sentencing range that has subsequently

been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). A sentence may

be reduced under § 3582(c)(2) only when “such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.” Id. The applicable policy

statement provides that a sentence reduction is not authorized if the retroactive

amendment “does not have the effect of lowering the defendant's applicable guideline

range.” U.S.S.G. § 1B1.10(a)(2)(B). In addition, “the term ‘applicable guideline range’

in § 1B1.10(a)(2) refer[s] to the . . . Guideline sentences as set by the statutory mandatory

minimum.” United States v. Doe, – F.3d –, 2009 WL 1151939, at *5 (3d Cir. Apr. 30,
4

2009); see also Mateo, 560 F.3d at 155 (“‘[t]he 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 .’” (quoting

United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008))). “Therefore, 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.’” Id. at 155 (quoting Caraballo, 552 F.3d at 10).

In November 2007, the Sentencing Commission amended the crack cocaine

guidelines, lowering the base offense levels for crack cocaine offenses under § 2D1.1©

by two levels. See Mateo, 560 F.3d at 154. The Commission later declared that those

amendments applied retroactively, effective as of March 3, 2008. See id.; see also United

States v. Wise, 515 F.3d 207, 221 (3d Cir. 2008). Importantly, however, the crack

cocaine amendments generally will not lower the applicable Guidelines sentencing range

under U.S.S.G. § 4B1.1(b) for career offenders. See Mateo, 560 F.3d at 154-55. When

the “relevant alternative offense level listed in the table at U.S.S.G. § 4B1.1(b) is higher

than the calculated offense level, § 4B1.1(b) requires that the higher offense level shall

apply.” Mateo, 560 F.3d at 153. “That usually will be the case, since the career offender

guideline ‘sets forth a tabulation of offense levels that are determined by reference to the

statutory maximum sentences authorized for various offenses of conviction.’” United

States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008) (quoting United States v. Ventura, 353
5

F.3d 84, 90 (1st Cir. 2003)). 

DiFilippo’s base offense level as a career offender under § 4B1.1(b) was higher

than the offense level calculated under § 2D1.1©. Therefore, the higher level applied, the

crack cocaine amendments did not affect DiFilippo’s sentencing range, and § 3582(c)(2)

does not authorize a sentence reduction. See Mateo, 560 F.3d at 155 (stating that the

crack cocaine amendments “only affect[] calculation under § 2D1.1©, and the lowering

of the base offense level under § 2D1.1© has no effect on the application of the career

offender offense level required by § 4B1.1.”). Accordingly, the District Court did not err

in denying DiFilippo’s motion to reduce his sentence. 

We shall affirm the judgment of the District Court.