United States of America v. Rodney Crosby

CLD-231 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1156
UNITED STATES OF AMERICA
v.
RODNEY CROSBY,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 2-05-cr-00355-001)
District Judge: Honorable David Stewart Cercone
Submitted for Possible Dismissal Due to Untimeliness or for 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
Rodney Crosby appeals from an order of the District Court reducing his sentence
from 121 months to 120 months. For the reasons that follow, we will summarily affirm.
In December 2006, Crosby pleaded guilty to one count of possession with intent to

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1 Although Crosby missed the 10-day deadline to file an appeal, the District Court
granted Crosby’s motion for an extension of time to file a notice of appeal. See Fed. R.
App. P. 4(b)(4). Thus, Crosby’s appeal is timely and we have jurisdiction. 28 U.S.C. §
1291.
2
distribute five or more grams of cocaine base (crack) in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii), and one count of possession with intent to distribute 50 or
more grams of cocaine base (crack) in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(iii). He was sentenced to concurrent 121-month terms.
In 2007, the United States Sentencing Commission amended the Sentencing
Guidelines to retroactively reduce the base offense level of crack-cocaine offenses. See
Kimbrough v. United States, 128 S. Ct. 558, 569 (2007). Based on this amendment,
Crosby filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). By
order entered November 18, 2008, the District Court reduced Crosby’s sentence to 120
months, the minimum allowed under §§ 841(a)(1) and (b)(1)(A)(iii). Crosby filed a
timely notice of appeal.1 He argues, among other things, that the disparity in sentencing
for crack and powder cocaine has a disproportionate impact on African American
offenders and violates his equal protection rights.
District courts can account for the crack-powder disparity during sentencing. See
Kimbrough, 128 S. Ct. at 575. However, that does not help Crosby. In his case, the
crack-cocaine amendments only reduced the base offense level of his offense; the
statutory range of his sentence remained 10 years to life in prison. Because “district
courts are constrained by the mandatory minimums,” id. at 574, we conclude that the

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3
District Court did not err in reducing Crosby’s sentence by one month. Cf. United States
v. Mateo, 560 F.3d 152, 156 (3d Cir. 2009) (finding that a career offender was not
entitled to a § 3582(c)(2) reduction because the crack-cocaine amendment to the
Guidelines did not lower the sentencing range for career offenders).
According to Crosby, equal-protection principles require the District Court to
sentence him below the statutory minimum. His constitutional argument, however, lay
outside of the scope of the § 3582(c)(2) proceedings, which are, by their nature, focused
solely on changes to a defendant’s Guidelines range. See United States v. McBride, 283
F.3d 612, 615-16 (3d Cir. 2002); see also United States v. Bravo, 203 F.3d 778, 781-82
(11th Cir. 2005). In any event, binding precedent holds that the sentencing disparity for
crack and powder cocaine does not offend the equal protection component of due process.
United States v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992).
For the foregoing reasons, we conclude that this appeal presents no substantial
question. Accordingly, we will affirm the judgment of the District Court.

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