United States of America v. Jeffery Brooks

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2826
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UNITED STATES OF AMERICA
v.
JEFFERY BROOKS,
Appellant.
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Appeal from the United States
District Court for the Middle District of Pennsylvania
(No. 04-cr-00089)
District Court Judge: Honorable William W. Caldwell
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Submitted Under Third Circuit L.A.R. 34.1(a)
November 10, 2009
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Before: AMBRO, GARTH, and ROTH Circuit Judges
(Opinion Filed: December 15, 2009)
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OPINION
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GARTH, Circuit Judge:
Jeffery Brooks appeals the District Court’s ruling on his motion to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2). We will affirm.
I.

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In 2004, Brooks pled guilty to distribution, and possession with intent to distribute,
crack cocaine, in violation of 21 U.S.C. § 841(a)(1). At sentencing, the District Court
adopted a presentence report that calculated an adjusted offense level of 25. This was
computed by starting with the then-applicable base offense level of 28 for crimes
involving at least 20 grams but less than 35 grams of crack cocaine, and then subtracting
three levels for acceptance of responsibility. See U.S.S.G. § 2D1.1; 3E1.1. When
combined with Brooks’ criminal history category of III, this yielded a guideline
imprisonment range of 70-87 months. The District Court imposed a sentence including a
78-month term of imprisonment.
Following the United States Sentencing Commission’s retroactive amendment to
the crack cocaine sentencing guidelines (“Amendment 706"), Brooks filed a pro se
motion for sentence reduction under 18 U.S.C. § 3582(c)(2). Brooks argued that,
pursuant to Amendment 706, the District Court should recalculate his guidelines range by
reducing his base offense level by two, resulting in a sentencing guidelines range of 57-71
months. Brooks further argued that, in conducting his resentencing, the District Court
should not be limited to a recalculation of his offense level, but should conduct a full
review of his sentence under the framework established in United States v. Booker, 543
U.S. 220 (2005).
The Probation Office and the government agreed that Amendment 706 rendered
Brooks eligible for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). On May

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Brooks’ notice of appeal initially appeared to be untimely. We remanded to the1
District Court for a determination whether to treat the notice of appeal as a motion for
extension of time to file a notice of appeal pursuant to Fed. R. App. P. Rule 4(b)(4). The
District Court so construed the notice of appeal, and granted the motion. Accordingly, the
notice of appeal was timely filed.
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1, 2008, the District Court granted Brooks’ motion in part. Based on Amendment 706,
the court calculated a new guideline range of 57-71 months and reduced Brooks’ sentence
to 64 months, but denied Brooks’ request for a full resentencing, ruling that it lacked
authority under § 3582(c)(2) to do so. Brooks then filed a notice of appeal.1
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary
review over the District Court’s interpretation of the sentencing guidelines and §
3582(c)(2). United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009).
III.
Brooks argues that because Amendment 706 lowered his guideline imprisonment
range and rendered him eligible for a § 3582(c)(2) sentence reduction, the District Court
should have conducted a full resentencing under United States v. Booker, 543 U.S. 220
(2005), pursuant to which the District Court might have further reduced his sentence. We
rejected this argument in United States v. Dillon, 572 F.3d 146 (3d Cir. 2009), where we
held that “Booker does not apply to the size of a sentence reduction that may be granted

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At the time Brooks filed his initial brief, we had decided Dillon as a non-2
precedential opinion. Brooks acknowledged Dillon but urged us not to follow it.
Appellant Br. 9-10, 14. One week after Brooks filed his brief, we granted a motion to
publish Dillon as a precedential opinion. It therefore binds us and controls this case.
Third Circuit I.O.P. 9.1.
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under § 3582(c)(2).” Id. at 149; see also United States v. Doe, 564 F.3d 305, 312-14 (3d2
Cir. 2009) (holding that Booker does not affect eligibility for a § 3582(c)(2) reduction).
In light of Dillon, the District Court did not err in concluding that Brooks was not entitled
to a full resentencing.
Brooks further argues that the District Court should be given an opportunity to
amend the sentence in response to a recent change in the Department of Justice’s policy
regarding the Sentencing Guidelines’ differential treatment of offenses involving crack
cocaine and powder cocaine. This argument is meritless. 18 U.S.C. § 3582(c)(2) permits
a sentence reduction only where a defendant “has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently lowered by the
Sentencing Commission.” Nothing in § 3582(c)(2) permits the District Court to alter a
previously imposed sentence simply because the Department of Justice has announced a
new or revised policy goal. See United States v. Miller, – Fed. App’x –, 2009 WL
3182996 at *2 (10th Cir. 2009).
IV.
For the reasons given above, we will affirm the judgment of the District Court.

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