United States of America v. Joseph Difilippo

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3798
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UNITED STATES OF AMERICA
v.
JOSEPH DIFILIPPO,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. Crim. Action No. 05-cr-00071)
District Judge: Honorable James M. Munley
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Submitted Pursuant to Third Circuit LAR 34.1(a)
July 21, 2009
Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: July 22, 2009)
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OPINION
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PER CURIAM
Joseph DiFilippo, proceeding pro se, appeals an order of the United States District
Court for the Middle District of Pennsylvania denying his motion to reduce his sentence
under 18 U.S.C. § 3582©. We will affirm.

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In February 2005, DiFilippo pled guilty to one count of distribution and possession
with intent to distribute in excess of 50 grams of cocaine base, a crime for which the
maximum statutory penalty is life imprisonment. See 21 U.S.C. §§ 841(a)(1);
841(b)(1)(A)(iii). According to the pre-sentence report, DiFilippo ordinarily would have
faced under the Sentencing Guidelines a total offense level of 29 based on a drug quantity
of more than 50 grams and less than 150 grams of cocaine base, see U.S.S.G.
§ 2D1.1(c)(4), a two-level downward adjustment for acceptance of responsibility, see
U.S.S.G. § 3E1.1(a), and a one-level downward adjustment for timely notice of intention
to plead guilty, see U.S.S.G. § 3E1.1(b). As a career offender, however, DiFilippo’s
sentencing range was determined based on the table in U.S.S.G. § 4B1.1(b). See United
States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). That table provides that a career
offender who faces a maximum penalty of life in prison has an offense level of 37. See
U.S.S.G. § 4B1.1. Factoring in the same three-level downward adjustments, DiFilippo’s
total offense level was 34. With a mandatory Criminal History category of VI, see
U.S.S.G. § 4B1.1(b), DiFilippo faced a Guidelines range of 262 to 327 months of
imprisonment.
The government moved for a downward departure for substantial assistance under
U.S.S.G. § 5K1.1, recommending a four-level departure to a Guideline range of 168 to
210 months of imprisonment. The District Court agreed that DiFilippo was a career
offender, granted the government’s motion for a downward departure, and ultimately

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imposed a prison sentence of 120 months, the statutory mandatory minimum. See 21
U.S.C. § 841(b)(1)(A)(iii). DiFilippo then filed a pro se motion under 18 U.S.C.
§ 3582(c)(2) to reduce his sentence pursuant to the Sentencing Commission’s retroactive
amendments to the crack cocaine Guidelines. The District Court denied the motion, and
this appeal followed.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of a district
court’s interpretation of the Guidelines is de novo, see United States v. Sanchez, 562 F.3d
275, 277-78 (3d Cir. 2009), and we review a district court’s exercise of its authority to
reduce a sentence under § 3582(c)(2) for abuse of discretion. See id. at 277 & n.4.
Section 3582(c)(2) authorizes a district court to reduce a term of imprisonment in the case
of a defendant who has been sentenced based on a sentencing range that has subsequently
been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). A sentence may
be reduced under § 3582(c)(2) only when “such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” Id. The applicable policy
statement provides that a sentence reduction is not authorized if the retroactive
amendment “does not have the effect of lowering the defendant's applicable guideline
range.” U.S.S.G. § 1B1.10(a)(2)(B). In addition, “the term ‘applicable guideline range’
in § 1B1.10(a)(2) refer[s] to the . . . Guideline sentences as set by the statutory mandatory
minimum.” United States v. Doe, – F.3d –, 2009 WL 1151939, at *5 (3d Cir. Apr. 30,

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2009); see also Mateo, 560 F.3d at 155 (“‘[t]he term “sentencing range” clearly
contemplates the end result of the overall guideline calculus, not the series of tentative
results reached at various interim steps in the performance of that calculus .’” (quoting
United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008))). “Therefore, pursuant to the
statute, ‘if an amended guideline does not have the effect of lowering the sentencing
range actually used at sentencing, the defendant’s sentence was not based on that range
within the intendment of the statute.’” Id. at 155 (quoting Caraballo, 552 F.3d at 10).
In November 2007, the Sentencing Commission amended the crack cocaine
guidelines, lowering the base offense levels for crack cocaine offenses under § 2D1.1©
by two levels. See Mateo, 560 F.3d at 154. The Commission later declared that those
amendments applied retroactively, effective as of March 3, 2008. See id.; see also United
States v. Wise, 515 F.3d 207, 221 (3d Cir. 2008). Importantly, however, the crack
cocaine amendments generally will not lower the applicable Guidelines sentencing range
under U.S.S.G. § 4B1.1(b) for career offenders. See Mateo, 560 F.3d at 154-55. When
the “relevant alternative offense level listed in the table at U.S.S.G. § 4B1.1(b) is higher
than the calculated offense level, § 4B1.1(b) requires that the higher offense level shall
apply.” Mateo, 560 F.3d at 153. “That usually will be the case, since the career offender
guideline ‘sets forth a tabulation of offense levels that are determined by reference to the
statutory maximum sentences authorized for various offenses of conviction.’” United
States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008) (quoting United States v. Ventura, 353

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F.3d 84, 90 (1st Cir. 2003)).
DiFilippo’s base offense level as a career offender under § 4B1.1(b) was higher
than the offense level calculated under § 2D1.1©. Therefore, the higher level applied, the
crack cocaine amendments did not affect DiFilippo’s sentencing range, and § 3582(c)(2)
does not authorize a sentence reduction. See Mateo, 560 F.3d at 155 (stating that the
crack cocaine amendments “only affect[] calculation under § 2D1.1©, and the lowering
of the base offense level under § 2D1.1© has no effect on the application of the career
offender offense level required by § 4B1.1.”). Accordingly, the District Court did not err
in denying DiFilippo’s motion to reduce his sentence.
We shall affirm the judgment of the District Court.

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