2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-22-2009

USA v. Fahim Muhammed

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3912

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Recommended Citation

"USA v. Fahim Muhammed" (2009). 2009 Decisions. Paper 967.

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CLD-229 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3912

___________

UNITED STATES OF AMERICA

v.

FAHIM MUHAMMED,

Appellant

__________________________________

On Appeal from the United States District Court

for the District of New Jersey 

(D.N.J. Crim. No. 90-cr-00304)

District Judge: Honorable Stanley R. Chesler

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

June 25, 2009

Before: RENDELL, HARDIMAN and NYGAARD, Circuit Judges

(Opinion filed: July 22, 2009)

_________

OPINION

_________

PER CURIAM

Fahim Muhammed, a federal prisoner proceeding pro se, appeals an order of the

United States District Court for the District of New Jersey denying his motion for a

reduction in sentence pursuant to 18 U.S.C. § 3582(c) and an order denying his motion
 The United States Sentencing Commission adopted Amendment 382 on November 1, 1

1991, which added subsection (f) to § 4A1.1. Section 4A1.1(f) requires the addition of

one point for each prior sentence that did not receive any points under § 4A1.1(a),(b), or

2

for reconsideration and motion to correct the record and/or judgment. We will affirm.

In 1991, Muhammed was convicted in federal court of conspiracy to distribute

heroin. He was sentenced to 264 months in prison. Muhammed’s sentence was based on

a criminal history score of six, which included two points under U.S.S.G. § 4A1.1(d) for

his commission of the offense while under parole supervision, one point under U.S.S.G. 

§ 4A1.1(e) for his commission of the offense within two years of being released from

prison, and three points under U.S.S.G. § 4A1.1(a) for four prior bank robberies. 

Although a criminal history score of six placed Muhammed in criminal history category

III, the sentencing court agreed with the Government that an upward departure was

warranted to adequately reflect the seriousness of Muhammed’s criminal history. 

Muhammed was placed in criminal history category VI, which had a guideline range of

235 to 293 months. In 1993, we affirmed the judgment of sentence. Muhammed later

unsuccessfully moved to vacate his sentence pursuant to 28 U.S.C. § 2255.

In 2008, Muhammed filed a motion to reduce his sentence pursuant to 18 U.S.C. 

§ 3582(c). Muhammed argued that his sentence should be reduced pursuant to

Amendment 709 to U.S.S.G. § 4A1.1(f), which became effective November 1, 2007, and

changed the way that multiple prior sentences are counted in calculating criminal history

scores. The District Court concluded that Muhammed was not eligible for relief under 1
(c). Amendment 382, which was not in effect when Muhammed’s offense occurred, was

not applied in computing Muhammed’s sentence. It appears that the sentencing court

implicitly agreed with the Government that the application of Amendment 382 would

violate the Ex Post Facto Clause. Amendment 709 revised § 4A1.1(f) and addressed in

part how multiple prior sentences should be counted.

 Although the motion for reconsideration was not docketed until August 18, 2008, it is 2

dated the same date as Muhammed’s Rule 36 motion – May 19, 2008. We deem these

motions, submitted within 10 days of the District Court’s May 12, 2008, order, timely

filed. See Local Criminal Rule 1.1 of U.S. District Court Rules for the District of New

Jersey (providing that Local Civil Rule 7.1(i), which affords 10 days to file a motion for

reconsideration, applies in criminal cases).

3

§ 3582(c) because Amendment 709 is not listed in U.S.S.G. § 1B1.10(c), and relief under 

§ 3582(c) is only authorized for amendments so listed. The District Court also rejected

Muhammed’s argument that Amendment 709 applies retroactively because it is a

clarifying, as opposed to a substantive, amendment.

Muhammed then filed a motion for reconsideration of the District Court’s order

and a motion to correct the record and/or judgment pursuant to Federal Rule of Criminal

Procedure 36. The District Court denied Muhammed’s motion for reconsideration, 2

explaining that he had not set forth a change in controlling legal authority or previously

unavailable evidence, nor had he shown that reconsideration was necessary to correct a

clear error of law or to prevent manifest injustice. 

The District Court granted in part and denied in part Muhammed’s Rule 36

motion, in which Muhammed argued that the District Court’s opinion contained several

erroneous statements. The District Court granted Muhammed’s motion to the extent he

sought to remove a statement in the background section of the opinion providing that the
4

sentencing judge acknowledged that application of the Amendment 382 would violate the

Ex Post Facto Clause. The District Court agreed that the sentencing judge did not make

such a statement, but noted that the removal of the statement did not change the outcome

of Muhammed’s § 3582 motion.

The District Court disagreed with Muhammed that it had erred in referring to his

prior bank robberies as armed, explaining that it had relied on the finding of the

sentencing court. The District Court also rejected Muhammed’s contentions that it had

erred in stating in its opinion that the application of the amended guidelines would have

subjected him to a longer sentence or that he had argued on appeal that the sentencing

judge improperly imposed the upward departure. Muhammed appeals the denial of his 

§ 3582 motion, his motion for reconsideration, and his Rule 36 motion.

We agree with the District Court that Muhammed is not eligible for relief under 

§ 3582 based on Amendment 709. As explained by the District Court,

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 . . . if such a reduction is

consistent with applicable policy statements issued by the Sentencing

Commission. 

18 U.S.C. § 3582(c)(2); United States v. Wise, 515 F.3d 207, 220-21 (3d Cir. 2008). 

Under the applicable policy statement, a reduction in the term of imprisonment is not

consistent and not authorized if none of the amendments listed in U.S.S.G. § 1B1.10(c)

applies to the defendant. U.S.S.G. § 1B1.10(a)(2). Amendment 709 is not listed in
 We note that Muhammed’s primary argument appears to be that the sentencing court 3

erred in failing to apply Amendment 382, which had been adopted at the time of his

sentencing. This argument is not properly raised in a § 3582 motion. In addition, the

1999 transcript related to Muhammed’s § 2255 proceedings, a partial copy of which is

attached to his § 3582 motion, reflects that he raised this argument in those proceedings. 

5

U.S.S.G. § 1B1.10(c). Thus, a reduction in sentence is not authorized under § 3582(c). 

The District Court correctly stated that whether Amendment 709 is a clarifying or

substantive amendment is not relevant for purposes of § 3582(c). The District Court also

properly denied, for the reasons stated in its opinion, Muhammed’s motion for

reconsideration and Rule 36 motion.3

Because this appeal does not raise a substantial question, we will affirm the order

of the District Court.