United States of America v. Michael Jones

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-4500
_____________
UNITED STATES OF AMERICA
v.
MICHAEL JONES,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cr-149-2)
District Judge: Honorable Stewart Dalzell
Submitted Under Third Circuit L.A.R. 34.1(a),
October 27, 2009
Before: SLOVITER, FUENTES, and HARDIMAN, Circuit Judges.
(Opinion Filed:October 30, 2009)
OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant Michael Jones pled guilty to a number of offenses involving cocaine
base (“crack”). As he had a prior felony drug conviction, he was subject to a statutory
mandatory minimum sentence of twenty years. He also faced a concurrent five-year

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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has1
jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over an issue of
statutory interpretation. United States v. Doe, 564 F.3d 305, 307 n.2 (3d Cir. 2009).
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mandatory minimum sentence for use of a firearm in furtherance of drug trafficking. At
sentencing, based on the substantial assistance provided by Jones, the government moved
for a downward departure under U.S.S.G. § 5K1.1 and for a departure from the
mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e). The District Court
granted the motion and sentenced Jones to 72 months’ imprisonment. Thereafter, Jones
filed a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), arguing that he
was entitled to resentencing based on a recent amendment to the Sentencing Guidelines
that lowered the base offense levels applicable to crack offenses. The District Court
denied the motion, holding that Jones was ineligible for a sentence reduction as he was
sentenced based on the statutory mandatory minima, not based on the crack Guidelines
range. For the reasons that follow, we will affirm the District Court.1
I.
Because we write primarily for the parties, we only discuss the facts and
proceedings to the extent necessary for the resolution of the case.
On September 15, 2005, appellant Michael Jones pled guilty to one count of
conspiracy to distribute crack and marijuana (Count 1); two counts of distribution of
marijuana (Counts 6 and 7); one count of distribution of crack (Count 9) ; one count of
possession of crack with intent to distribute (Count 12); one count of possession with

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intent to distribute crack within 1,000 feet of a school (Count 18); one count of possession
of a firearm by a convicted felon (Count 20); and one count of use of a firearm in
furtherance of drug trafficking (Count 21). Prior to Jones’s guilty plea, the government
filed a notice of a prior felony drug conviction pursuant to 21 U.S.C. § 851, which
increased the statutory mandatory minimum sentence on the conspiracy and crack counts
(Counts 1, 9, and 12) to twenty years. Jones also faced a consecutive mandatory minimum
five-year sentence for Count 21, use of a firearm in furtherance of drug trafficking, in
violation of 18 U.S.C. § 924(c).
At the sentencing hearing, the District Court calculated that Jones had an adjusted
total offense level of 33 and was in criminal history category II, resulting in a Guidelines
range of 151 to 188 months’ imprisonment. The application of the statutory mandatory
minima increased the sentence to 240 months’ imprisonment on the conspiracy and crack
offenses followed by 60 months on the § 924(e) offense, for a total sentence of 300
months’ imprisonment. The District Court granted the government’s motion for a
downward departure under U.S.S.G. § 5K1.1 and for a departure from the mandatory
minimum sentence pursuant to 18 U.S.C. § 3553(e) and imposed a total sentence of, inter
alia, 72 months’ imprisonment.
On May 23, 2008, Jones filed a motion for reduction of sentence pursuant to 18
U.S.C. § 3582(c)(2) on the ground that a recent amendment to the Sentencing Guidelines

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“On November 1, 2007 . . . the United States Sentencing Commission passed2
Amendment 706, which changed U.S.S.G. § 2D1.1 by lowering the base offense levels
for most quantities of crack cocaine by two levels. On December 11, 2007, the
Sentencing Commission made Amendment 706 retroactive by including it in the list of
retroactive amendments in § 1B1.10(c) of the Guidelines.” Doe, 564 F.3d at 308
(internal citations omitted).
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lowered the base offense levels applicable to crack offenses. The District Court denied2
Jones’s § 3582(c)(2) motion. In appealing that denial, Jones asserts that the District Court
erred in the following ways: (1) allowing U.S.S.G. § 1B1.10 to control its interpretation of
18 U.S.C. § 3582(c)(2); (2) holding that, due to the mandatory minima, Jones’s sentence
was not “based on a sentencing range that has subsequently been lowered”; and (3) failing
to consider the rule of lenity in its decision.
II.
In relevant part, 18 U.S.C. § 3582(c)(2) provides:
[I]n the case of a defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the
defendant . . . , the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
In a decision filed after Jones filed his brief on appeal, United States v. Doe, 564
F.3d 305 (3d Cir. 2009), we interpreted the language of § 3582(c)(2) and rejected each of
the arguments that Jones raises in his brief. In all material and relevant aspects, the
factual and procedural history of Doe is identical to that of the instant case. Specifically,

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the appellants in Doe pled guilty to offenses involving crack, were granted significant
substantial-assistance departures below the statutory mandatory minimum sentence, filed
motions for sentence reductions pursuant to § 3582(c)(2), and were denied relief. Id. at
307.
In affirming the denial of the sentence reduction motions in Doe, we held that “[i]n
providing that sentence reductions must be consistent with applicable Sentencing
Commission policy statements, § 3582(c)(2) creates a jurisdictional bar to sentence
modification when a retroactive amendment does not have the effect of lowering the
Guideline sentence.” Id. at 315. Thus, in the context of § 3582(c)(2) proceedings, “the
Commission’s policy statements implementing retroactive sentence reduction are
binding.” Id. at 310. In Doe, we concluded that as a mandatory minimum sentence
“subsume[s]” the initial Guidelines range, the crack amendment to the Sentencing
Guidelines did not “have the effect of lowering the Appellants’ applicable Guideline
ranges because the mandatory minimums were unaffected by [the amendment].” Id. at
312. As a result, the district court was barred from reducing appellants’ sentences under
§ 3582(c)(2). Id.
Appellants in Doe further argued that the rule of lenity applied in their favor. We
held that the rule of lenity was inapplicable, concluding that while “the phrases ‘based on’
and ‘the effect of lowering the defendant’s applicable guideline range’ need to be
interpreted, . . . they do not contain such an ambiguity that the Court can make no more

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than a guess as to what Congress intended.” Id. at 315.
The reasoning and result in Doe are controlling in the instant case. Accordingly,
we will affirm the District Court’s denial of Jones’s § 3582(c)(2) motion.
IV.
For the foregoing reasons, we affirm the District Court’s denial of Jones’s motion
for modification of sentence pursuant to 18 U.S.C. § 3582(c)(2).

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