United States of America v. CURTIS L. McKEITHAN

1
HLD-047 (December 2009) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4014
___________
UNITED STATES OF AMERICA
v.
CURTIS L. McKEITHAN,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 00-cr-00278)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
December 30, 2009
Before: Chief Judge SCIRICA, WEIS and GARTH, Circuit Judges
Opinion filed: January 28, 2010
___________
OPINION
___________
PER CURIAM.
Appellant Curtis L. McKeithan, proceeding pro se, sought a reduction in his
sentence of imprisonment pursuant to 18 U.S.C. § 3582(c), which the District Court

-- 1 of 5 --

2
denied. For the reasons that follow, we will summarily affirm.
In 2001, following a jury trial in the United States District Court for the
Middle District of Pennsylvania, McKeithan was convicted of conspiracy to distribute
and possess with intent to distribute in excess of 50 grams of cocaine base (crack),
distribution and possession with intent to distribute in excess of 50 grams of cocaine base
(crack), and related offenses. The Court determined his base offense level to be 38, with
a 4 level upward adjustment for his lead role in the offense, for a total base offense level
of 42, with a criminal history category of III. This resulted in an imprisonment range of
360 months to life. McKeithan was sentenced to a total of 420 months’ imprisonment,
consisting of 360 months for the drug-related offenses with a consecutive 60 month
sentence for the possession of a firearm conviction.
In 2007, the United States Sentencing Commission enacted Amendment
706, which lowered the base offense level for cocaine base (“crack”) offenses, and made
the Amendment retroactive. McKeithan thereafter filed a motion seeking a reduction in
his sentence pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides that the
sentencing court may modify a term of imprisonment:
in 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
or the Director of the Bureau of Prisons, or on its own motion,
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

-- 2 of 5 --

Because McKeithan’s five-year sentence on the gun charge was not affected by1
Amendment 706, McKeithan is not eligible for re-sentencing on that charge.
3
consistent with applicable policy statements issued by the
Sentencing Commission.
In determining whether a defendant’s sentence is eligible for such a reduction, the
sentencing court is directed to “determine the amended guideline range that would have
been applicable to the defendant if the amendment(s) to the guidelines listed in subsection
(c) had been in effect at the time the defendant was sentenced. In making such
determination, the court shall substitute only the amendments listed in subsection (c) for
the corresponding guideline provisions that were applied when the defendant was
sentenced and shall leave all other guideline application decisions unaffected.” See U.S.
Sentencing Guidelines § 1B1.10(b).
In support of his motion, McKeithan made several arguments regarding the
District Court’s discretion in sentencing under United States v. Booker, 543 U.S. 220
(2005), and Spears v. United States, __ U.S. __, 129 S. Ct. 840 (2009), and the unfairness
of the disparity in sentences between him and his co-defendant. However, as both the
Government and the Federal Public Defender explained to the District Court, while
McKeithan’s base offense level under the new Sentencing Guidelines would be
readjusted to a 40, he remains in the same sentencing range. Accordingly, the District1
Court denied McKeithan’s motion.

-- 3 of 5 --

4
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We
review the District Court’s interpretation of the Sentencing Guidelines de novo and its
decision whether to grant or deny a defendant’s motion to reduce his sentence pursuant to
§ 3582(c)(2) for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 (3d
Cir. 2009).
In his informal brief, which we construe as his opposition to possible
summary action, McKeithan argues that the District Court erred in not considering the
sentencing factors listed in 18 U.S.C. § 3553(a) and in not exercising its discretion in
sentencing him under Booker and its progeny. There is a split amongst the U.S. Courts of
Appeals as to whether the sentencing guidelines are advisory rather than mandatory in the
context of a Section 3582 sentence modification. Compare United States v. Hicks, 472
F.3d 1167 (9th Cir. 2007), with United States v. Dillon, 572 F.3d 146, 149-50 (3d Cir.
2009), cert. granted, __ S. Ct. __, 2009 WL 2899562 (Dec. 7, 2009). However, this issue
does not arise unless the sentencing range under the amended guidelines is lower than it
was at the time of the defendant’s original sentencing. See Mateo, 560 F.3d at 154 (“[t]o
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”). Because
McKeithan’s sentencing range was not affected by Amendment 706, he is not eligible for
a reduction in his sentence pursuant to Section 3582(c). Accordingly, the District Court
properly denied McKeithan’s motion for a reduction in sentence.

-- 4 of 5 --

5
Based on the foregoing, we conclude that this appeal presents no
“substantial question,” and will summarily affirm the judgment of the District Court. See
3d Cir. LAR 27.4 & I.O.P. 10.6.

-- 5 of 5 --