2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-2-2012

USA v. Michael Nixon

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1699

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Recommended Citation

"USA v. Michael Nixon" (2012). 2012 Decisions. Paper 328.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1699

___________

UNITED STATES OF AMERICA

v.

MICHAEL NIXON, 

Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 93-cr-00386-004)

District Judge: Honorable Harvey Bartle, III

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 1, 2012

Before: JORDAN, HARDIMAN and ALDISERT, Circuit Judges

(Opinion filed: October 2, 2012)

___________

OPINION

___________

PER CURIAM.

In 1994, a jury in the United States District Court for the Eastern District of 

Pennsylvania convicted Michael Nixon of conspiracy to distribute in excess of 50 grams 

of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). At sentencing, the District Court 

determined that Nixon was responsible for the distribution of between 1.5 and 4.8 kilos of 
2

crack cocaine. With a total offense level of 44 and a criminal history category of VI, 

Nixon’s guidelines sentencing range called for life imprisonment, which is the sentence 

that the District Court imposed. This Court affirmed on direct appeal. The District Court 

later denied Nixon’s collateral review motion under 28 U.S.C. § 2255. 

In 2001, Nixon filed the first of four motions seeking to reduce his sentence under

18 U.S.C. § 3582(c)(2).1

In 2005, Nixon filed motion number two, seeking relief in light of United States v. 

Booker, 543 U.S. 220 (2005). The District Court denied the motion.

 His first motion invoked Amendment 591. The District Court 

held that this amendment reduced Nixon’s total offense level from 44 to 43, but because 

Nixon’s guidelines sentencing range remained life imprisonment, the Court denied relief. 

In 2008, Nixon’s third § 3582(c)(2) motion invoked Amendment 706, which 

reduced the base offense levels for many crack offenses and was made retroactive. The 

District Court concluded that Amendment 706 lowered Nixon’s total offense level to 41, 

and reduced his guidelines sentencing range to 360 months to life imprisonment. The 

District Court granted relief and reduced Nixon’s sentence to 360 months in prison.

In 2012, Nixon filed his fourth § 3582(c)(2) motion, which is the subject of this 

appeal. Nixon, with the assistance of counsel, invoked Amendment 750, which reduced 

the base offense levels for most crack offenses in light of the Fair Sentencing Act of 2010 

 1 Section 3582(c)(2) is “a statutory provision enacted to permit defendants whose 

Guidelines sentencing range has been lowered by retroactive amendment to move for

a sentence reduction if the terms of the statute are met.” Freeman v. United States, 

131 S. Ct. 2685, 2690-91 (2011) (plurality opinion).
3

and was made retroactive effective November 1, 2011. The government argued that 

Amendment 750 does not lower Nixon’s sentencing range below 360 months to life

imprisonment, and therefore provides no basis for relief. The District Court agreed and 

denied the § 3582(c)(2) motion. It explained that, under Amendment 750, Nixon’s total 

offense level is lowered to 39, but with a criminal history category of VI, his guidelines 

sentencing range remains 360 months to life. Nixon timely filed this pro se appeal.

We have appellate jurisdiction under 28 U.S.C. § 1291. Exercising plenary 

review, see United States v. Hanlin, 48 F.3d 121, 124 (3d Cir. 1995), we will affirm. As 

the District Court correctly explained, Nixon’s guidelines sentencing range is not lowered 

under Amendment 750; it remains 360 months to life imprisonment. Because a sentence 

reduction cannot be afforded when a retroactively applicable amendment “does not have 

the effect of lowering the defendant’s applicable guideline range,” U.S.S.G. § 

1B1.10(a)(2)(B), the District Court properly denied Nixon’s § 3582(c)(2) motion. See

Dillon v. United States, 130 S. Ct. 2683, 2691 (2010) (“A court must first determine that 

a reduction is consistent with § 1B1.10 before it may consider whether the authorized 

reduction is warranted, either in whole or in part, according to the factors set forth in § 

3553(a).”); United States v. Doe, 564 F.3d 305, 314 (3d Cir. 2009) (“The language of § 

3582(c)(2) could not be clearer: the statute predicates authority to reduce a defendant’s 

sentence on consistence with the policy statement, and the policy statement provides that 

a reduction is not consistent if the amendment does not have the effect of lowering the 

defendant’s applicable Guideline range.”).
4

In his brief on appeal, Nixon points to no error in the District Court’s analysis, and 

in fact he appears to concede that the District Court was correct in its application of 

Amendment 750. See Reply Br. at 2. Nixon argues instead that he is entitled to relief 

due to alleged “jurisdictional defects” in his case, claiming that, once those defects are 

remedied, he will be entitled to relief under Amendment 750.

2

We agree with the government that Nixon’s failure to raise these new arguments

before the District Court precludes their consideration on appeal. See, e.g., Nelson v. 

Adams USA, Inc., 529 U.S. 460, 469 (2000) (observing that generally “issues must be 

raised in lower courts in order to be preserved as potential grounds of decision in higher 

courts”). In any event, as the government also correctly explains in its brief, Nixon’s 

various arguments afford no basis for relief under the limited remedy made available to 

defendants in a § 3582(c)(2) proceeding.

 Nixon also claims that he 

was prejudiced by the alleged ineffectiveness of his counsel in this proceeding and in the 

2008 proceeding under § 3582(c)(2).

For these reasons, we will affirm the District Court’s judgment.

 2 Nixon’s primary assertion is that the jury, not the District Court, had to make 

findings of fact regarding drug quantity and to support the various enhancements 

applied at his sentencing proceeding, and that the sentence, therefore, violates United 

States v. Booker, 543 U.S. 220 (2005), and its progeny. It is settled, however, that 

Booker does not apply retroactively to cases, like Nixon’s, that became final prior to 

issuance of the Booker decision. See Lloyd v. United States, 407 F.3d 608, 616 (3d 

Cir. 2005). Moreover, we have held that “the constitutional holding in Booker does 

not apply to § 3582(c)(2).” United States v. Doe, 564 F.3d 305, 313 (3d Cir. 2009). 

Nixon’s arguments based on Booker are therefore misplaced.