United States v. Monroe Bullock ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1346
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UNITED STATES OF AMERICA
v.
MONROE E. BULLOCK, a/k/a MUNCHIE,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2:95-cr-00296-002)
District Judge: Honorable Paul S. Diamond
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Submitted Pursuant to Third Circuit LAR 34.1(a)
July 23, 2013
Before: SMITH, CHAGARES and SHWARTZ, Circuit Judges
(Opinion filed: July 24, 2013)
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OPINION
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PER CURIAM
Monroe Bullock, a federal inmate proceeding pro se, appeals from the District Court’s
order denying his motion for a reduction of sentence pursuant to 18 U.S.C.
§ 3582(c)(2). For the following reasons, we will affirm.
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I.
Bullock was convicted of conspiracy to distribute cocaine base following a jury trial.
Under the then-mandatory Sentencing Guidelines, Bullock’s base offense level was 36.
However, his adjusted offense level was 44 after the application of various sentencing
enhancements. Bullock’s Guidelines range called for life imprisonment, which the late
Honorable James M. Kelly imposed.
We affirmed on direct appeal. United States v. Bullock, 129 F.3d 1256 (3d Cir. 1997).
After unsuccessfully pursuing post-conviction relief, Bullock filed a motion for reduction of
sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the Guidelines, which
lowered the base offense level for certain quantities of crack cocaine under U.S.S.G. §
2D1.1(c). The District Court reduced Bullock’s sentence to 360 months’ imprisonment but
denied his request for an additional reduction, and we affirmed. See United States v. Bullock,
No. 08-4098 (order entered Oct. 19, 2009).
In November 2012, Bullock filed a motion pursuant to § 3582(c)(2) and Amendment
591, arguing that the sentencing court incorrectly applied the base offense level for crack
cocaine offenses because the Government failed to prove that the substance at issue was crack
cocaine. He further asserted that the sentencing court’s determination that the substance was
crack cocaine was based on an insufficient factual basis. The District Court denied his motion,
noting that Amendment 591 did not impact the selection of the appropriate base offense level
under U.S.S.G. § 2D1.1. Bullock timely filed this appeal.
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II.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s
ultimate decision to deny Bullock’s § 3582(c)(2) motion for abuse of discretion, but review de
novo the District Court’s legal interpretation of relevant statutes and guidelines. United States
v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009).
III.
Under § 3582(c)(2), a sentencing court may reduce an imposed sentence based on a
subsequent amendment to the Guidelines if the amendment is named in the policy statement
contained in U.S.S.G. § 1B1.10. See United States v. McBride, 283 F.3d 612, 614 (3d Cir.
2002). Amendment 591 is retroactively applicable under
§ 1B1.10(c). The Guidelines require a sentencing court to refer to the Statutory Index of the
Sentencing Manual (Appendix A) to choose the offense guideline. Amendment 591 no longer
permits the sentencing court to choose the offense guideline based on the offender’s actual
conduct; instead, the sentencing court must apply the offense guideline that corresponds to the
statute of conviction. See United States v. Diaz, 245 F.3d 294, 302 (3d Cir. 2001).
In denying Bullock’s motion, the District Court explained that the sentencing court
referenced Appendix A and selected § 2D1.1 as the applicable offense guideline for Bullock’s
conviction under 21 U.S.C. § 846. No violation of Amendment 591 occurred, as this is exactly
the procedure now mandated by the amendment. In his motion, Bullock argues that
Amendment 591 would preclude the District Court from relying on the cocaine base portions
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of § 2D1.1’s drug weight table to determine his base offense level. However, he confuses the
concepts of the applicable “offense guideline” with the “base offense level” within that offense
guideline. See United States v. Rivera, 293 F.3d 584, 585 (2d Cir. 2002); accord United States
v. Moreno, 421 F.3d 1217, 1219-20 (11th Cir. 2005) (Amendment 591 does not restrict the use
of judicially-found facts to select the base offense level). Accordingly, Amendment 591 does
not afford Bullock any relief.1
In his brief, Bullock alleges that Amendment 591 precludes application of U.S.S.G. §
2D1.1 altogether. He argues that § 2D1.1 only applies to crack cocaine and that there are no
guidelines for offenses involving other forms of cocaine base. Bullock’s argument is clearly
misplaced, as offenses involving other forms of cocaine base would still be governed by §
2D1.1, but the substance would be treated as cocaine for determining the base offense level.
See United States v. Barbosa, 271 F.3d 438, 467 (3d Cir. 2001) (under the Sentencing
Guidelines, use of the term “cocaine base” only refers to crack); see also U.S.S.G. § 2D1.1(c)
(distinguishing between cocaine and cocaine base in the drug quantity table). Furthermore, the
sentencing court’s determination that Bullock conspired to distribute crack cocaine cannot be
reconsidered under the limited scope of § 3582(c)(2). See Dillon v. United States, 130 S. Ct.
2683, 2694 (2010).
IV.
For the foregoing reasons, we will affirm the District Court’s order.
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We disagree with Bullock that Amendment 591 contains any ambiguity that could be
construed in his favor under the rule of lenity. See United States v. Flemming, 617 F.3d 252,
269-70 (3d Cir. 2010).
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