United States of America v. Benjamin Rodriguez

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2401
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UNITED STATES OF AMERICA
v.
BENJAMIN RODRIGUEZ,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(Crim. No. 1-07-cr-00146-3)
District Judge: Hon. Sylvia H. Rambo
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 2, 2009
Before: McKEE, CHAGARES, and NYGAARD, Circuit Judges.
(Opinion Filed: December 29, 2009)
OPINION
McKEE, Circuit Judge.
Benjamin Rodriguez challenges the district court’s ruling that he was not eligible
for an additional two-point reduction in his base offense level because of his classification
as a career offender. For the reasons that follow, we will affirm.
I.

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Inasmuch as we are writing primarily for the parties, we need not set forth the
factual or procedural history in detail. After entering into a plea agreement, Rodriguez
argued that he was entitled to a two-point minor role reduction pursuant to U.S.S.G. §
3B1.1 because he had not been an “active player,” and because he “didn’t make any
money [from the drug transaction].” App. 14, 17. The government opposed the request
because the applicable Guidelines sentencing range was driven by his career offender
status under § 4B1.1 of the Guidelines. The district court acknowledged Rodriguez’s
minor role in the instant offense, but agreed that § 4B1.1 precluded the two-point
reduction Rodriguez was requesting.
The district court accepted the revised PSR, with its recommended three-point
reduction for acceptance of responsibility. The court also granted the government’s §
5K1.1 motion which reduced Rodriguez’s base offense level by an additional two levels,
from 34 to 32. When combined with a criminal history category of VI, this resulted in an
advisory sentencing range of 210 to 262 months. The court imposed a sentence of 210
months because of Rodriguez’s relatively minor role, and the government’s
recommendation. This appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a)(1). Our review of the district court’s interpretation and application of the
Guidelines is plenary. See United States v. DeJesus, 347 F.3d 500, 505 (3d Cir. 2003).
III.

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As noted at the outset, Rodriguez argues that the district court erred in concluding
that his career offender status made him ineligible for an additional two-level reduction in
base offense level under § 3B1.1 of the Guidelines. The argument is foreclosed by our
decision in United States v. Johnson, 155 F.3d 682 (3d Cir. 1998). There, we held that
“minor role downward adjustments do not apply to career offenders.” Id. at 685. Johnson
remains controlling precedent in this circuit, and cannot be overruled by an appellate
panel. See 3d Cir. IOP 9.1 (“Court en banc consideration is required to [overrule
precedential opinions].”).
Although Rodriguez acknowledges the holding in Johnson, he argues that Johnson
should be reconsidered in light of the Supreme Court’s holding in United States v.
Booker, 543 U.S. 220 (2005). In Booker, the Court invalidated 18 U.S.C. § 3553(b)(1),
which made mandatory the imposition of a sentence within the calculated Guidelines
range. See 543 U.S. at 259. Rodriguez asserts that since the Guidelines are now advisory,
the district court should now also have the discretion to apply the additional two-point
reduction for minor participation regardless of Rodriguez’s career offender status.
Rodriguez’s reliance on Booker is misplaced.
Following Booker, we held that district courts are to follow a three-step procedure
in calculating the appropriate sentence for a defendant. See United States v. Gunter, 462
F.3d 237, 247 (3d Cir. 2006). The steps are:
(1) Courts must continue to calculate a defendant’s Guidelines
sentence precisely as they would have before Booker.
(2) In doing so, they must “formally rul[e] on the motions of both

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parties and stat[e] on the record whether they are granting a
departure and how that departure affects the Guidelines
calculation and take[e] into account [our] Circuit’s pre-
Booker case law, which continues to have advisory force.”
(3) Finally, they are required to “exercise[ ] [their] discretion by
considering the relevant [§ 3553(a)] factors” in setting the
sentence they impose regardless whether it varies from the
sentence calculated under the Guidelines.
Id. (internal citations omitted) (alterations in original). Rodriguez objects to the district
court’s interpretation of the Guidelines in step two. Our case law makes clear that Booker
does not apply to the second step of the Guidelines calculation. See United States v.
Grier, 585 F.3d 138, 142 (3d Cir. 2009) (holding that Booker only gave judges discretion
at step three under § 3553(a)). The rule of Booker is not violated by the district court’s
ruling here because even though the court correctly concluded that Rodriguez was not
eligible for the reduction he sought, the court retained the discretion to impose a sentence
below the Guideline range that resulted from the court’s Guideline calculation. The
district court was also correct in “tak[ing] into account [this circuit’s] pre-Booker case
law,” Gunter, 462 F.3d at 257, in ruling that the minor role adjustment did not apply to
career offenders, see Johnson, 155 F.3d at 685. Thus, we conclude that the district court
did not err in imposing this sentence and denying the additional two-point downward
adjustment in calculating his Guidelines base offense level.
IV.
For the foregoing reasons, we will affirm the decision of the district court.

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