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. e du/thir dc ir c uit_2002/169PRECEDENTIAL

Filed March 13, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-1616

UNITED STATES OF AMERICA

v.

OMAR MCBRIDE a/k/a

LITTLE O

Omar McBride, Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 92-cr-00671-10 District Judge: The Honorable Lowell A. Reed, Jr.

Submitted Under Third Circuit LAR 34.1(a) February 5, 2002

Before: BECKER, Chief Judge, McKEE, and BARRY, Circuit Judges

(Filed: March 13, 2002)Jeremy H.G. Ibrahim, Esq.

121 South Broad Street The North American Building Philadelphia, PA 19107

Attorney for Appellant

Joseph T. Labrum, III, Esq. Assistant U.S. Attorney Office of the United States Attorney
615 Chestnut Street Philadelphia, PA 19106

Attorney for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

I.

In November, 1992, a federal grand jury in the East ern District of Pennsylvania returned an indictment cha rging twenty defendants, including Omar McBride, with ove r eighty counts of drug trafficking, violent crime in aid of racketeering, and firearms offenses. On June 23, 19 93, each of the eight defendants who went to trial was convicted on one or more counts of the forty counts which went to the jury. McBride was convicted for his membership in a conspiracy, known as "The Zulu Nati on," to distribute and to possess with intent to distrib ute crack cocaine, in violation of 21 U.S.C. S 846.

At sentencing, the District Court attributed a tota l weight of 49.4 kilograms of crack cocaine to the conspirac y and 27.5 kilograms of that amount to McBride. According ly,
McBride's offense level was set at 42. U.S.S.G.S 2D 1.1(c) (1993). This offense level was enhanced by two leve ls for McBride's possession of a firearm. S 2D1.1(b)(1). W ith a
total offense level thus set at 44 and a criminal h istory category of III, McBride was sentenced to life in p rison. We affirmed the judgment of sentence in an unpublished

2opinion. United States v. McBride, 74 F.3d 1229 (19 95)

(table).

II.

On September 19, 1997, McBride moved for a reductio n of sentence pursuant to 18 U.S.C. S 3582(c)(2). The motion was based on Amendment 505 to the Sentencing Guidelines, an amendment which became effective on November 1, 1994 and which, as relevant here, delet ed offense levels 38, 40, and 42 of the Drug Quantity Table in U.S.S.G. S 2D1.1(c) and inserted a revised level 38 as the upper limit of the Table. U.S. Sentencing Guideline s Manual, App. C, Vol. 1 (1998). The Sentencing Commi ssion explained that, absent the extraordinary case, more than level 38 is not required to ensure adequate punishm ent given that organizers, leaders, managers, and super visors will receive a four, three, or two level enhancemen t for their
role in the offense and a two level enhancement wil l be received by any participant who possessed a dangero us weapon in the offense.

In a Memorandum Opinion dated October 26, 2000, the District Court agreed that retroactive application of
Amendment 505 would be available to McBride and tha t the guideline imprisonment range would be recompute d after giving him the benefit of the level 38 cap an d adding, as before, the two level enhancement of possession of a firearm. Certainly, then, to the extent that McBrid e had sought consideration of a reduction of sentence und er 18 U.S.C. S 3582(c)(2), his motion was granted. The Co urt scheduled a limited sentencing hearing, ordered an updated presentence report, and appointed counsel to repres ent
McBride.

On January 5, 2001, the sentence hearing commenced. McBride asked that, aside from any benefit he might receive as a result of the retroactive amendment, he be res entenced in accordance with Apprendi v. New Jersey, 530 U.S. 466 (2000), and the hearing was adjourned in order that that issue could be briefed. Apprendi, as by now is sure ly well known, held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime bey ond the

3prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt." Id. at 490. As argued, and as briefed, McBride's position was that Apprendi had by then become "the law of the land" a nd because the jury had not found a specific drug quan tity beyond a reasonable doubt, he should be resentenced within the statutory maximum for 21 U.S.C. S 846, " the object of said conspiracy being 21 U.S.C. S 841(a)( 1), without regard to quantity." Supp. App. 31. Applyin g Apprendi, he argued, would result in a maximum sent ence of twenty years under 21 U.S.C. S 841(b)(1)(C) rath er than a sentence within the expected guideline imprisonme nt range, as recomputed, of 360 months to life impriso nment.

The District Court determined that even if Apprendi could be applied retroactively, it would not be applied a t McBride's resentencing because that resentencing wa s circumscribed by the nature of the motion before th e Court, which was simply a motion under 18 U.S.C. S 3582(c) (2) for a reduction of sentence based on a change in the Guidelines. Accordingly, the Court only gave McBrid e the benefit of that change, pegging the base offense le vel at 38, and resentenced him to 400 months imprisonment.

McBride has appealed. We have jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a) and will affi rm.

III.

McBride's appeal turns on his challenge to the scop e of the resentencing hearing. He argues that the Distri ct Court erred in restricting the scope of that hearing to t he benefit, if any, he would receive by virtue of the retroacti ve amendment to S 2D1.1 with its new upper limit on th e base offense level. Rather, the argument goes, the scope of the hearing should have encompassed Apprendi and the substantial benefit the application of Apprendi wo uld assuredly have afforded him. We review de novo the District Court's determination to the contrary. United State s v. Yeaman, 194 F.3d 442, 456 (3d Cir. 1999).

McBride moved for a reduction of sentence pursuant to 18 U.S.C. S 3582(c)(2) seeking relief based upon Amendment 505. S (c)(2) provides:

4(c) The court may not modify a term of impri sonment

once it has been imposed except that --

. . .

(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentenc ing range that has subsequently been lowered by the Se ntencing Commission pursuant to 28 U.S.C. 994(o) . . . the court may reduce the term of imprisonment, a fter 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 stateme nts issued by the Sentencing Commission.

The Commission's applicable policy statement isS 1B 1.10, which explicitly makes Amendment 505 retroactive, s tating,

as relevant here:

Reduction in Term of Imprisonment as a Resul t of Amended Guideline Range (Policy Statement)

(a) Where a defendant is serving a term of imprisonment, and the guideline range applic able to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Man ual listed in subsection (c) below, a reduction in the defendant's term of imprisonment is authoriz ed under 18 U.S.C. S 2(c)(2).

. . .

(c) Amendments covered by this policy statem ent [include Amendment #]505. . . .

Where a reduction in a term of imprisonment is authorized by virtue of an amendment explicitly mad e retroactive, S 1B1.10(b) specifies what a court sho uld consider when determining if a reduction is warrant ed and, if so, the extent of that reduction, to wit:

(b) In determining whether, and to what exte nt, a reduction in the term of imprisonment is war ranted for a defendant eligible for consideration under 18 U.S.C. S 3582(c)(2), the court should consider the term of imprisonment that it would have imposed had the amendment(s) to the guidelines listed in sub section (c)

5been in effect at the time the defendant was sentenced

. . .

The commentary to S 1B1.10 unambiguously emphasizes the limited nature of what may be considered:

In determining the amended guideline range u nder subsection (b), the court shall substitute o nly the amendments listed in subsection (c) for the corresponding guideline provisions that were applied

when the defendant was sentenced. All other guideline application decisions remain unaffected.

comment. (n.2). It is, thus, clear that only the re troactive amendment is to be considered at a resentencing und er S 3582 and the applicability of that retroactive am endment must be determined in light of the circumstances ex istent at the time sentence was originally imposed. In oth er words, the retroactive amendment merely replaces th e provision it amended and, thereafter, the Guideline s in effect at the time of the original sentence are app lied.

Wholly aside from the fact that there was no Appren di at the time of the original sentencing, constraining a court's
consideration to the retroactive amendment at issue is consistent with the focused nature of a proceeding under S 3582. See United States v. Cothran, 106 F.3d 1560 , 1562 (11th Cir. 1997) (holding that S 3582(c)(2) does no t contemplate a full de novo resentencing); United St ates v. Torres, 99 F.3d 360, 362-63 & n.3 (10th Cir. 1996) (holding that treating a resentencing under S 3582 as a de n ovo resentencing would negate the limit on retroactivit y found in S 1B1.10). Indeed, we, too, have distinguished b etween a "full resentencing" and a reduction of sentence und er 18 U.S.C. S 3582(c). United States v. Faulks , 201 F.3 d 208, 210 (3d Cir. 2000).

While, of course, Apprendi is being regularly invok ed by defendants in various settings with varying degrees of success, we have not until now decided in a publish ed opinion whether it would afford relief when a modif ication of sentence is sought under 18 U.S.C. S 3582(c)(2). See United States v. Nixon, No. 01-3128 at 4 (3d Cir. F eb. 20, 2002) (unpub.). We hold that it would not, as have those Courts of Appeals that have considered this issue.

6United States v. Smith, 241 F.3d 546 (7th Cir. 2001 ), is

remarkably similar to the case before us, with the Seventh Circuit reaching the same conclusion we reach. Smit h filed a motion for resentencing under S 3582(c), seeking a reduction in sentence based on a retroactive change in the Guidelines. The District Court agreed that a reduct ion was appropriate and reduced his sentence from life imprisonment to 405 months. But, as the Seventh Cir cuit put it, "Smith was not happy with this change, even though it [was] the one specified by the amended guideline ." Id. at
547. Smith asked the District Court to reduce his s entence to 240 months because the jury had not determined t he amount of crack cocaine in which he had dealt and, under 21 U.S.C. S 841(b)(1)(C), 240 months was the maximu m sentence which could be imposed. Neither the Distri ct Court nor the Seventh Circuit was persuaded, but af ter Apprendi was issued, the Supreme Court remanded Smi th's
case to the Seventh Circuit for further considerati on.

On remand, the Seventh Circuit rejected the Apprend i
claim.

Smith did not raise this issue in 1992, when it would have been possible to submit the question to a jury, so "plain error" would be the standard if this were a direct appeal. But it is not. . . . Smith's post-ju dgment request for resentencing rested on a change in the S entencing Guidelines. Only at his resentencing under t he amended guideline did Smith first raise the contention that the jury should have been told to deter mine whether the conspiracy dealt in 50,5, or les s than 5, grams of crack cocaine. That was a new issue , one not authorized by S 3582(c), for it is unrelated to any change in the Sentencing Guidelines.

241 F.3d at 548.1 In a case, coincidentally, of the same

___________________________________________________ ______________

1. The Seventh Circuit described Smith's Apprendi c laim as "effectively" a collateral attack on his sentence, usually raised by motion under 28 U.S.C. S 2255. Although the Court discussed the cau se and prejudice Smith was required to show to obtain collateral rel ief, and found both wanting, it also found it "by no means clear" that Apprendi would apply in the first place. Id. at 549. It pointed out that the Supreme Court had not held that Apprendi is retroactively applicable on collateral attack.

We

7name, the Fourth Circuit, describing a resentencing under

S 3582(c)(2) as "merely a form of limited remand," agreed with the Seventh Circuit that an argument that the defendant's sentence violated Apprendi was not auth orized by S 3582(c) because it was unrelated to any change in the

Guidelines. United States v. Smith, No. 00-4181, 20 01 WL 427790 (4th Cir. Apr. 26, 2001). See also United St ates v. Bacote, No. 00-1622, 2001 WL 393705 (2d Cir. Apr. 1 8,

2001).2

The District Court determined that McBride's Appren di argument was independent of and unrelated to any ch ange in the Guidelines and was, therefore, outside the s cope of
a sentence modification under S 3582. Given the lim ited nature of the S 2 proceeding, and given the constra ints of S 1B1.10, p.s., we agree.

IV.

The order of the District Court will be affirmed.

___________________________________________________ _____________

have held that the new rule in Apprendi was not ret roactive to cases on collateral review. In re: Turner, 267 F.3d 225 (3d Cir. 2001). So, too,

now has the Seventh Circuit in a case decided after Smi th, United States v. Sanders, 247 F.3d 139 (4th Cir. 2001), as has each Court of Appeals to
have considered the issue.

2. See also United States v. Paul, Crim. A. 96-049, 2001 WL 883130 (E.D. La. July 26, 2001) (rejecting Apprendi claim as "clear[ly]" and "unambiguous[ly]" inappropriate for consideration u nder S 3582, based on that statute's language); United States v. Griff in, No. CR. A. 93-491, 2001 WL 540997 (E.D. Pa. May 21, 2001) ("Apprendi c hallenge may not be brought pursuant to 18 U.S.C. S 3582(c)(2) becau se it does not relate to a change in the Sentencing Guidelines by the Sen tencing Commission"); United States v. Morgan, Crim. 92-665 -1, 2000 WL 1368028 (E.D. Pa. Sept. 13, 2000) (because "Apprend i did not directly address the federal sentencing guideline issues," S 3582 motion was inapplicable).

8A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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