United States v. Orustu Brown , 506 F. App'x 145 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2558
___________
UNITED STATES OF AMERICA
v.
ORUSTU B. BROWN, a/k/a TJ
ORUSTU B. BROWN,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 02-cr-00236-001)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 19, 2012
Before: AMBRO, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: December 6, 2012)
_________________
OPINION
_________________
PER CURIAM
Orustu B. Brown appeals pro se from the District Court’s orders denying his
motions for a sentence reduction under 18 U.S.C. § 3582(c)(2) and for reconsideration of
that ruling. We will affirm.
I.
In 2002, Brown pleaded guilty to one charge of possession with intent to distribute
five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii) (2002 version). The 10.8 grams of crack cocaine at issue produced a base
Sentencing Guidelines offense level of 26. Because Brown is a career offender, however,
his offense level increased to 34. Following a three-point downward adjustment for
acceptance of responsibility, Brown’s offense level of 31 and his criminal history
category of VI produced a Guidelines range of 188 to 235 months of imprisonment. The
District Court sentenced him to 188 months.
At issue here is Brown’s motion for a reduction in sentence under § 3582(c)(2). In
his motion, Brown sought a reduction in light of Sentencing Guidelines Amendment 750,
which “reduced the crack-related offense levels in § 2D1.1 of the Guidelines.” United
States v. Berberena, Nos. 11-4540 & 12-1103, — F.3d —, 2012 WL 3937666, at *1 (3d
Cir. Sept. 11, 2012). Brown did not request any specific reduction or explain how he
believed Amendment 750 affected his Guidelines range. By order entered April 30,
2012, the District Court denied the motion without explanation. Brown then filed a
motion for reconsideration repeating his request for an unspecified reduction and raising
for the first time the arguments addressed below. The District Court denied that motion
by order entered May 14, 2012. In doing so, the District Court explained that application
of Amendment 750 would not change Brown’s sentencing range because, although it
would reduce his base offense level from 26 to 18, his total offense level would remain
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31 because of his status as a career offender, and his sentencing range would thus remain
188 to 235 months of imprisonment even if Amendment 750 were applied. Brown
appeals pro se. 1
II.
Brown’s request for a sentence reduction is squarely foreclosed by our existing
precedent. A sentence reduction under § 3582(c)(2) is available only if, inter alia, the
defendant was “sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission[.]” § 3582(c)(2); see also
United States v. Thompson, 682 F.3d 285, 287 (3d Cir. 2012). As we held before Brown
filed his motion, this language permits a reduction on the basis of a Guidelines
amendment only if the amendment “ha[s] the effect of lowering the sentencing range
actually used at sentencing.” United States v. Mateo, 560 F.3d 152, 155 (3d Cir. 2009)
(quotation marks omitted). The amendment at issue in Mateo did not do so because the
defendant’s offense level was determined by his career offender status, not by the lower
base offense level dictated by crack cocaine quantity, and his sentencing range thus
remained the same even with application of the amendment. See id. at 154-55. The same
is true in this case. Indeed, Brown’s sentencing range of 188 to 235 months of
1
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s denial of
a § 3582(c)(2) motion for abuse of discretion, though we review underlying legal issues
de novo. See Berberena, 2012 WL 3937666, at *3 n.7. We review the denial of
reconsideration for abuse of discretion as well. See United States v. Dupree, 617 F.3d
724, 732 (3d Cir. 2010).
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imprisonment, which is unchanged by application of Amendment 750, is the exact same
sentencing range that was left unchanged by application of the amendment at issue in
Mateo. See id. at 155. We recently reaffirmed our holding in Mateo after concluding
that it is consistent with the Supreme Court’s decision in Freeman v. United States, 131
S. Ct. 2685 (2011). See Thompson, 682 F.2d at 291. Thus, Brown’s request for a
sentence reduction on the basis of Amendment 750 is clearly foreclosed.
Brown has not acknowledged this controlling authority. Instead, he repeats the
arguments that he raised for the first time in his motion for reconsideration. We could
deem them waived because Brown did not raise them in his underlying motion, see
Dupree, 617 F.3d at 732-33, but they lack merit in any event. Brown argues that the
Sentencing Commission violated the Administrative Procedures Act (“APA”) and
principles of due process in promulgating Guidelines commentary that precludes career
offenders from benefitting from Amendment 750. We have considered these arguments,
and find them unpersuasive. Brown also argues that depriving career offenders of the
benefit of Amendment 750 is inconsistent with the legislative intent underlying the Fair
Sentencing Act and the policies underlying the crack cocaine amendments in general.
These arguments are contrary to the plain statutory language of § 3582(c)(2). See
Berberena, 2012 WL 3937666, at *4 (rejecting similar arguments because “[w]e cannot
intuit an intent unmoored from Congress’ directives”). Finally, Brown argues that the
District Court retained the discretion to reduce his sentence because the Guidelines are
advisory. We squarely rejected that argument in Mateo because, while the Guidelines
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may be advisory, the language of § 3582(c)(2) is not and expressly limits district courts’
authority to reduce sentences to situations in which the Sentencing Commission has
lowered the applicable Guidelines range. See Mateo, 560 F.3d at 155-56. Brown is not
in that situation because the crack-quantity Guideline from whose amendment he seeks to
benefit played no role in determining his sentence.
For these reasons, we will affirm the judgment of the District Court.
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