United States of America v. Percy Dillon

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-3397
_____________
UNITED STATES OF AMERICA,
v.
PERCY DILLON,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 93-cr-0084)
District Judge: Honorable Alan N. Bloch
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 19, 2009
Before: FUENTES, JORDAN, and NYGAARD, Circuit
Judges.
(Opinion Filed: June, 10, 2009)

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Lisa B. Freeland, Esq.
Elisa A. Long, Esq.
Renee Pietropaolo, Esq.
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
Attorneys for Appellant
Mary Beth Buchanan, Esq.
Donovan J. Cocas, Esq.
Robert L. Eberhardt, Esq.
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
FUENTES, Circuit Judge:
Percy Dillon appeals the District Court’s partial denial of

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We exercise jurisdiction pursuant to 28 U.S.C.A. §1
1291. We review de novo the district court's determination of
the scope of its authority to reduce a sentence under 18 U.S.C.
§ 3582. United States v. Fanfan, 558 F.3d 105, 107 (1st Cir.
2009); cf. United States v. Doe, 564 F.3d 305, 307 n.2 (3d Cir.
2009).
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his motion to reduce his sentence pursuant to 18 U.S.C. §
3582(c)(2). In 2008, the United States Sentencing Commission
amended the United States Sentencing Guidelines
(“Guidelines”), retroactively reducing the base offense level for
crack cocaine offenses. The District Court subsequently entered
an order reducing Dillon’s sentence by two-levels, but held that
it lacked authority to reduce Dillon’s sentence further. Dillon
argues that the District Court erred in failing to recognize that
United States v. Booker, 543 U.S. 220 (2005) gave it such
authority. For the reasons that follow, we will affirm.1
I.
If Booker did apply in proceedings pursuant to § 3582,
Dillon would likely be an ideal candidate for a non-Guidelines
sentence. In 1993, Dillon was convicted of conspiracy to
distribute more than 500 grams of cocaine and more than 50
grams of cocaine base in violation of 21 U.S.C. § 846; use of a
firearm during a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1); and possession with intent to distribute more than
500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1).
At the time, the District Court calculated Dillon’s offense
level to be 38 and his criminal history category to be II. Dillon
received two criminal history points: one for misdemeanor

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This Guidelines range includes the mandatory2
consecutive 60-month sentence for the firearms offense. See 18
U.S.C. § 924(c)(1).
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marijuana possession and one for misdemeanor resisting arrest.
Thus, Dillon’s Guidelines range was 322 to 387 months.2
The District Court sentenced Dillon to the bottom of the
Guidelines range, 322 months. However, the District Court
repeatedly stated that it was constrained by the Guidelines to
impose what it believed to be an unreasonable sentence. At
Dillon’s original sentencing hearing, the District Court noted: “I
personally don’t believe that you should be serving 322 months[,
b]ut I feel I am bound by those Guidelines . . .” App. at 99. The
District Court continued: “I don’t say to you that these penalties
are fair. I don’t think they are fair. I think they are entirely too
high for the crime you have committed even though it is a
serious crime.” Id. The District Court also noted that it
believed Dillon’s sentence to be unreasonable in its Statement
of Reasons: “[T]he guidelines range is unfair to the defendant.
The Court, however, is bound by the guidelines range.” App. at
5.
Following the change in the crack cocaine offense level,
Dillon filed a pro se motion for a sentence reduction. The
District Court recalculated Dillon’s offense level to be 36 and
reduced Dillon’s sentence to 270 months. Dillon argued that the
District Court should apply Booker in resentencing him, but the
District Court found that Booker did not apply and that it lacked
jurisdiction to grant more than a 2-level sentence reduction.

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II.
A court generally may not modify a term of imprisonment
once it has become final. 18 U.S.C. § 3582(c). However, 18
U.S.C. § 3582(c)(2) provides that:
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) . . . 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 Booker, the Supreme Court concluded that the Sixth
Amendment requires a jury to find the facts that establish a
mandatory floor for a defendant’s sentence. 543 U.S. at 229,
244. Following Booker, a sentencing court must calculate a
defendant’s Guidelines range, but may only use that range as a
starting point for determining a reasonable sentence based on an
individualized assessment of the factors set forth at 18 U.S.C. §
3553(a). Gall v. United States, 128 S. Ct. 586, 596-97 (2007).
Dillon argues that a district court adjusting a sentence pursuant
to § 3582(c) must also treat the amended Guidelines range as
advisory, and impose a sentence based on the procedures set
forth in the Booker line of cases.
We have held that Booker does not affect eligibility for
a § 3582(c) sentence reduction. See, e.g., United States v. Doe,
564 F.3d 305, 313-14 (3d Cir. 2009) (holding that defendants
who received substantial assistance departures below the

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Our decision in United States v. Styer, No. 08-2951,3
2009 U.S. App. Lexis 6240 (3d Cir. Mar. 25, 2009) does not
relate to this issue. Styer does not cite Booker and does not
discuss the scope of a district court’s jurisdiction under § 3582,
except to acknowledge that “courts are constrained to consider
only the retroactive amendment at issue.” Id. at *5. Instead, in
Styer, we reviewed for reasonableness the district court’s
decision not to resentence Styer after the Guidelines under
which he was originally sentenced were reduced.
Reasonableness review of a district court’s discretionary
decision at a § 3582 proceeding does not constitute a holding on
how Booker applies at these proceedings.
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statutory mandatory minimum were not eligible for reduction);
United States v. Mateo, 560 F.3d 152, 155 (3d Cir. 2009)
(holding that defendant sentenced based on career offender
Guidelines range was not eligible for reduction as a result of the
crack cocaine amendment).
Though we have not yet written precedentially on
whether Booker gives a district court authority to give a
defendant who is eligible for a sentence reduction under § 3582
an additional reduction, our reasoning in the eligibility cases
also applies in this context. In the context of eligibility for a §3
3582 sentence reduction we explained that:
Nowhere in Booker did the Supreme Court
mention § 3582(c)(2). Because § 3582(c)(2) proceedings
may only reduce a defendant’s sentence and not increase
it, the constitutional holding in Booker does not apply to
§ 3582(c)(2). See Booker, 543 U.S. at 244.

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Additionally, the remedial holding in Booker invalidated
only 18 U.S.C. § 3553(b)(1), which made the Sentencing
Guidelines mandatory for full sentencings, and §
3742(e), which directed appellate courts to apply a de
novo standard of review to departures from the
Guidelines. Therefore, Booker applies to full sentencing
hearings–whether in an initial sentencing or in a
resentencing where the original sentence is vacated for
error, but not to sentence modification proceedings under
§ 3582(c)(2). Not only are sentence modification
proceedings sanctioned under a different section of the
statute than those at issue in Booker, but the Booker
court held that “[w]ith these two sections excised (and
statutory cross-references to the two sections
consequently invalidated), the remainder of the Act
satisfies the Court's constitutional requirements.”
Booker, 543 U.S. at 259. Section 3582(c)(2) contains no
cross-reference to § 3553(b) and therefore was not
affected by Booker. Nor is there anything else in Booker
that directly addresses § 3582(c) proceedings.
. . . .
Nothing 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. The language
of § 3582(c)(2) could not be clearer: the statute
predicates authority to reduce a defendant’s sentence on
consistenc[y] with the policy statement, and the policy
statement provides that a reduction is not consistent if the
amendment does not have the effect of lowering the

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defendant’s applicable Guideline range. The Guidelines
are no longer mandatory, but that does not render
optional statutory directives.
. . . .
Because U.S.S.G. § 1B1.10 is binding on the
District Court pursuant to § 3582(c)(2), the District Court
correctly concluded that it lacked the authority to further
reduce the Appellants’ sentences.
Doe, 564 F.3d at 312-14 (internal citations and quotation marks
omitted). For the same reasons, we conclude that Booker does
not apply to the size of a sentence reduction that may be granted
under § 3582(c)(2).
In doing so, we are joined by the overwhelming majority
of our sister Courts of Appeals. See United States v. Fanfan,
558 F.3d 105, 110 (1st Cir. 2009) (holding that Booker does not
apply in the context of § 3582(c)(2)); United States v. Savoy,
—F.3d—, 2009 WL 1457976, at *2-3 (2d Cir. 2009) (per
curiam) (same); United States v. Dunphy, 551 F.3d 247, 254
(4th Cir. 2009) (same); United States v. Cunningham, 554 F.3d
703, 707 (7th Cir. 2009) (same); United States v. Starks, 551
F.3d 839, 842 (8th Cir. 2009) (same); United States v. Rhodes,
549 F.3d 833, 840 (10th Cir. 2008) (same); United States v.
Melvin, 556 F.3d 1190, 1192 (11th Cir. 2009) (per curiam)
(same); but see United States v. Hicks, 472 F.3d 1167, 1171-72
(9th Cir. 2007) (holding that Booker abolished the mandatory
nature of the Guidelines in all contexts).
Dillon also argues that the District Court erred in
calculating his criminal history score. However, the District

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Court had no authority to reconsider its prior criminal history
determination. See, e.g., Mateo, 560 F.3d at 156.
III.
Because Booker does not apply in § 3582(c)(2)
proceedings, the District Court did not err in denying Dillon’s
motion for a reduction below his new Guidelines range. We
will affirm the judgment of the District Court.

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