United States of America v. Kevin Roberson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2501
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UNITED STATES OF AMERICA
v.
KEVIN ROBERSON,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 88-cr-173)
District Judge: Honorable William W. Caldwell
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Submitted Under Third Circuit LAR 34.1(a)
May 20, 2009
Before: FUENTES, JORDAN and NYGAARD, Circuit Judges.
(Filed : May 28, 2009)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Kevin Roberson appeals the District Court’s denial of his motion for a sentence
reduction. Because the District Court did not have authority to reduce his sentence under
18 U.S.C. §3582(c), we will affirm.

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Because the drug quantity attributed to Roberson was in excess of 500 grams, his1
base offense level was 36. Two levels were added for possession of a firearm during the
offense, and three were added for his leadership role of an enterprise involving five or
more participants.
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I. Background
Kevin Roberson pled guilty to conspiracy to possess with intent to manufacture or
distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846; and possession with
intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). In its Pre-
Sentence Report (“PSR”), the United States Probation Office assigned Roberson a
criminal history category of VI and a total offense level of 41. Those calculations carried1
a Guidelines sentencing range of 360 months to life in prison. Adopting the recommended
calculations in the PSR, the District Court sentenced Roberson to 360 months’
imprisonment.
After the United States Sentencing Commission instituted Amendment 706 to the
Guidelines, a retroactive two-level sentencing reduction for crack cocaine offenses,
Roberson moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). In addition to
arguing that Amendment 706 entitled him to a reduction, Roberson claimed that the
District Court had erroneously characterized him as a career offender.
The District Court agreed that Roberson should not have been sentenced as a
career offender, but it determined that neither re-categorizing his criminal history, nor
applying the two-level reduction, had the effect of lowering his sentencing range. Based

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The District Court had jurisdiction to review the motion under 18 U.S.C. § 3231.2
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
interpretation of the Sentencing Guidelines de novo. United States v. Edwards, 309 F.3d
110, 112 (3d Cir. 2002).
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on U.S.S.G.§ 1B1.10(a)(2)(B), which states that a reduction is not authorized under 18
U.S.C. § 3582(c)(2) if the “amendment listed in subsection (c) does not have the effect of
lowering the defendant’s applicable guideline range,” the Court denied Roberson’s
motion. This timely appeal followed.
II. Discussion2
Roberson contends that the District Court improperly treated the policy statement
contained in U.S.S.G. § 1B1.10(a)(2)(B) as mandatory and that, because the policy
statement is advisory, the Court was required to review the factors enumerated in 18
U.S.C. § 3553(a) to determine if a reduction was appropriate. That argument is based on
the incorrect premise that the Sentencing Guidelines give district courts the authority to
consider motions for sentence reductions. Such authority actually stems from 18 U.S.C.
§ 3582(c), according to which courts are generally prohibited from modifying terms of
imprisonment once they are imposed. An exception exists, however, for “defendant[s]
who ha[ve] been sentenced ... based on a sentencing range that has subsequently been
lowered by the Sentencing Commission ... .” Id. § 3582(c)(2).
While Amendment 706 lowered Roberson’s offense level from 41 to 39, his
sentencing range remained 360 months to life imprisonment. Because he was not

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Although the error has no bearing on our analysis, we note that the District Court3
did not have the authority to reconsider the application of the career offender status to
Roberson. Mateo, 560 F.3d at 156
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sentenced “based on a sentencing range that [was] subsequently lowered” by the
amendment, § 3582(c)(2) did not authorize the District Court to reduce his sentence. See3
also United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009) (“Amendment 706 only
decreased the base offense level for crack cocaine offenses by two levels. To be entitled
to a reduction of sentence, a defendant’s sentencing range must have been lowered by
recalculation based on the amended base offense level.”) (emphasis omitted)).
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s Order denying
Roberson’s motion for a sentence reduction.

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