United States of America v. Michael Bullard

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-4662
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UNITED STATES OF AMERICA
v.
MICHAEL BULLARD,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Crim. Action No. 00-cr-00085)
District Judge: Honorable William H. Yohn, Jr.
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Submitted Pursuant to Third Circuit LAR 34.1(a)
July 1, 2009
Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: July 8, 2009)
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OPINION
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PER CURIAM
Michael Bullard, proceeding pro se, appeals an order of the United States District
Court for the Eastern District of Pennsylvania denying his motion to reduce his sentence
under 18 U.S.C. § 3582(c). We will affirm.

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Citing the Privacy Act, 5 U.S.C. § 552a, Bullard also requested that the United States1
Probation Office amend his presentence investigation report in accordance with his
interpretation of Amendment 709. Because the Probation Office is an arm of the federal
courts, see 18 U.S.C. § 3602, it is not subject to the Privacy Act. See 5 U.S.C.
§ 551(1)(B); Washington Legal Found. v. United States Sentencing Comm’n, 17 F.3d
1446, 1449 (D.C. Cir. 1994); Callwood v. Dep’t of Prob. of the Virgin Islands, 982
F.Supp. 341, 343 (D.Vi. 1997) (concluding that Department of Probation is not an agency
subject to the Privacy Act).
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In January 2001, a jury in the Eastern District of Pennsylvania convicted Bullard of
possession of a firearm by a convicted felon, 18 U.S.C. § 922(g), and, in a separate
proceeding, found that he was an armed career criminal subject to an enhanced sentence
under 18 U.S.C. § 924(e). The District Court sentenced Bullard to 240 months of
imprisonment. We affirmed the conviction and sentence. In June 2003, Bullard filed a
motion under 28 U.S.C. § 2555. The District Court denied the motion on the merits, and
we denied his application for a certificate of appealability. We also denied Bullard’s
application for an order authorizing the District Court to consider a second or successive
§ 2255 motion.
Bullard next filed a pro se motion under 18 U.S.C. § 3582(c) for a sentence
reduction based on Amendment 709 to the United States Sentencing Guidelines
(“U.S.S.G.”). He alleged that Amendment 709, which addresses, inter alia, the1
computation of criminal history scores under U.S.S.G. § 4A1.2, would lower his
sentencing range. The District Court denied the motion because Amendment 709, which

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The District Court also denied a motion filed by Bullard pursuant to Federal Rule of2
Civil Procedure 60(b)(4). Bullard has not challenged this ruling on appeal.
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became effective on November 1, 2007, was not given retroactive effect. Bullard2
appealed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a
district court’s decision to grant or deny a motion to reduce sentence under § 3582(c)(2)
for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 & n.2 (3d Cir.
2009). 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).
Section 3582(c)(2) grants a district court discretion to reduce the term of
imprisonment of an already incarcerated defendant if that defendant “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).” In such a case,
the district court may reduce the defendant’s sentence “if such a reduction is consistent
with applicable policy statements issued by the Sentencing Commission.” § 3582(c)(2).
The applicable policy statement provides that a sentence reduction is not authorized
unless: (1) the amendment to the Guidelines actually had the effect of lowering the
Guideline range; and (2) the amendment is listed as retroactively applicable under
§ 1B1.10(c). See U.S.S.G. § 1B1.10(a)(2); see also United States v. Thompson, 70 F.3d
279, 281 (3d Cir. 1995) (holding that “by the plain language of the policy statement,” an

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amendment to the Sentencing Guidelines does not have retroactive effect unless listed in
§ 1B1.10(c)).
Amendment 709 is not listed in § 1B1.10(c) as a retroactively applicable
amendment. Therefore, the District Court did not have authority to reduce Bullard’s
sentence based on an application of Amendment 709. See United States v. Peters, 524
F.3d 905, 907 (8th Cir. 2008) (“To the extent Mr. Peters asked the district court to
reconsider his criminal history score pursuant to Amendment 709, that amendment is not
a covered amendment under § 1B1.10 to which retroactive treatment may be given.”).
Nevertheless, Bullard contends that the District Court had discretion to reduce his
sentence because, under United States v. Booker, 543 U.S. 220 (2005), the limitations on
sentencing reductions in § 1B1.10(a)(2) are merely advisory. We have stated, however,
that “[n]othing in Booker purported to obviate the congressional directive in § 3582(c)(2)
that a sentence reduction pursuant to that section be consistent with Sentencing
Commission policy statements.” United States v. Doe, – F.3d –, 2009 WL 1151939, at *7
(3d Cir. Apr. 30, 2009).
Therefore, because the District Court did not err in denying Bullard’s motion, we
will affirm the judgment of the District Court.

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