2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-13-2002

USA v. McBride

Precedential or Non-Precedential:

Docket 1-1616

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Recommended Citation

"USA v. McBride" (2002). 2002 Decisions. Paper 169.

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PRECEDENTIAL 

 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 Eastern 

District of Pennsylvania returned an indictment charging 

twenty defendants, including Omar McBride, with over 

eighty counts of drug trafficking, violent crime in aid of 

racketeering, and firearms offenses. On June 23, 1993, 

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 Nation," 

to distribute and to possess with intent to distribute crack 

cocaine, in violation of 21 U.S.C. S 846. 

At sentencing, the District Court attributed a total weight 

of 49.4 kilograms of crack cocaine to the conspiracy and 

27.5 kilograms of that amount to McBride. Accordingly, 

McBride's offense level was set at 42. U.S.S.G.S 2D1.1(c) 

(1993). This offense level was enhanced by two levels for 

McBride's possession of a firearm. S 2D1.1(b)(1). With a 

total offense level thus set at 44 and a criminal history 

category of III, McBride was sentenced to life in prison. We 

affirmed the judgment of sentence in an unpublished

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opinion. United States v. McBride, 74 F.3d 1229 (1995) 

(table). 

II. 

On September 19, 1997, McBride moved for a reduction 

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, deleted 

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 Guidelines 

Manual, App. C, Vol. 1 (1998). The Sentencing Commission 

explained that, absent the extraordinary case, more than 

level 38 is not required to ensure adequate punishment 

given that organizers, leaders, managers, and supervisors 

will receive a four, three, or two level enhancement for their 

role in the offense and a two level enhancement will be 

received by any participant who possessed a dangerous 

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 that 

the guideline imprisonment range would be recomputed 

after giving him the benefit of the level 38 cap and adding, 

as before, the two level enhancement of possession of a 

firearm. Certainly, then, to the extent that McBride had 

sought consideration of a reduction of sentence under 18 

U.S.C. S 3582(c)(2), his motion was granted. The Court 

scheduled a limited sentencing hearing, ordered an updated 

presentence report, and appointed counsel to represent 

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 resentenced 

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 surely well 

known, held that "[o]ther than the fact of a prior conviction, 

any fact that increases the penalty for a crime beyond the 

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prescribed 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" and 

because the jury had not found a specific drug quantity 

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. Applying 

Apprendi, he argued, would result in a maximum sentence 

of twenty years under 21 U.S.C. S 841(b)(1)(C) rather than 

a sentence within the expected guideline imprisonment 

range, as recomputed, of 360 months to life imprisonment. 

The District Court determined that even if Apprendi could 

be applied retroactively, it would not be applied at 

McBride's resentencing because that resentencing was 

circumscribed by the nature of the motion before the 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 McBride the 

benefit of that change, pegging the base offense level 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 affirm. 

 III. 

McBride's appeal turns on his challenge to the scope of 

the resentencing hearing. He argues that the District Court 

erred in restricting the scope of that hearing to the benefit, 

if any, he would receive by virtue of the retroactive 

amendment to S 2D1.1 with its new upper limit on the base 

offense level. Rather, the argument goes, the scope of the 

hearing should have encompassed Apprendi and the 

substantial benefit the application of Apprendi would 

assuredly have afforded him. We review de novo the District 

Court's determination to the contrary. United States 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: 

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 (c) The court may not modify a term of imprisonment 

 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 sentencing range 

 that has subsequently been lowered by the Sentencing 

 Commission pursuant to 28 U.S.C. 994(o) . . . 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. 

The Commission's applicable policy statement isS 1B1.10, 

which explicitly makes Amendment 505 retroactive, stating, 

as relevant here: 

 Reduction in Term of Imprisonment as a Result of 

 Amended Guideline Range (Policy Statement) 

 (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. S 2(c)(2). 

 . . . 

 (c) Amendments covered by this policy statement 

 [include Amendment #]505. . . . 

Where a reduction in a term of imprisonment is 

authorized by virtue of an amendment explicitly made 

retroactive, S 1B1.10(b) specifies what a court should 

consider when determining if a reduction is warranted and, 

if so, the extent of that reduction, to wit: 

 (b) In determining whether, and to what extent, a 

 reduction in the term of imprisonment is warranted 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 subsection (c) 

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 been 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 under 

 subsection (b), the court shall substitute only 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 retroactive 

amendment is to be considered at a resentencing under 

S 3582 and the applicability of that retroactive amendment 

must be determined in light of the circumstances existent 

at the time sentence was originally imposed. In other 

words, the retroactive amendment merely replaces the 

provision it amended and, thereafter, the Guidelines in 

effect at the time of the original sentence are applied. 

Wholly aside from the fact that there was no Apprendi 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 not 

contemplate a full de novo resentencing); United States v. 

Torres, 99 F.3d 360, 362-63 & n.3 (10th Cir. 1996) (holding 

that treating a resentencing under S 3582 as a de novo 

resentencing would negate the limit on retroactivity found 

in S 1B1.10). Indeed, we, too, have distinguished between a 

"full resentencing" and a reduction of sentence under 18 

U.S.C. S 3582(c). United States v. Faulks , 201 F.3d 208, 

210 (3d Cir. 2000). 

While, of course, Apprendi is being regularly invoked by 

defendants in various settings with varying degrees of 

success, we have not until now decided in a published 

opinion whether it would afford relief when a modification 

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. Feb. 20, 

2002) (unpub.). We hold that it would not, as have those 

Courts of Appeals that have considered this issue. 

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United 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. Smith 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 reduction was 

appropriate and reduced his sentence from life 

imprisonment to 405 months. But, as the Seventh Circuit 

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 sentence 

to 240 months because the jury had not determined the 

amount of crack cocaine in which he had dealt and, under 

21 U.S.C. S 841(b)(1)(C), 240 months was the maximum 

sentence which could be imposed. Neither the District 

Court nor the Seventh Circuit was persuaded, but after 

Apprendi was issued, the Supreme Court remanded Smith's 

case to the Seventh Circuit for further consideration. 

On remand, the Seventh Circuit rejected the Apprendi 

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-judgment request 

 for resentencing rested on a change in the Sentencing 

 Guidelines. Only at his resentencing under the 

 amended guideline did Smith first raise the contention 

 that the jury should have been told to determine 

 whether the conspiracy dealt in 50,5, or less 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 claim as "effectively" 

a collateral attack on his sentence, usually raised by motion under 28 

U.S.C. S 2255. Although the Court discussed the cause and prejudice 

Smith was required to show to obtain collateral relief, 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 

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name, 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 authorized 

by S 3582(c) because it was unrelated to any change in the 

Guidelines. United States v. Smith, No. 00-4181, 2001 WL 

427790 (4th Cir. Apr. 26, 2001). See also United States v. 

Bacote, No. 00-1622, 2001 WL 393705 (2d Cir. Apr. 18, 

2001).2 

The District Court determined that McBride's Apprendi 

argument was independent of and unrelated to any change 

in the Guidelines and was, therefore, outside the scope of 

a sentence modification under S 3582. Given the limited 

nature of the S 2 proceeding, and given the constraints 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 retroactive 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 Smith, 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 under S 3582, based 

on that statute's language); United States v. Griffin, No. CR. A. 93-491, 

2001 WL 540997 (E.D. Pa. May 21, 2001) ("Apprendi challenge may not 

be brought pursuant to 18 U.S.C. S 3582(c)(2) because it does not relate 

to a change in the Sentencing Guidelines by the Sentencing 

Commission"); United States v. Morgan, Crim. 92-665-1, 2000 WL 

1368028 (E.D. Pa. Sept. 13, 2000) (because "Apprendi did not directly 

address the federal sentencing guideline issues," S 3582 motion was 

inapplicable). 

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A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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