United States of America v. Derrick H. Bell

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3763
UNITED STATES OF AMERICA
v.
DERRICK H. BELL,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Criminal No. 03-cr-00161-01
(Honorable Christopher C. Conner)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 20, 2009
Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges.
(Filed: August 31, 2009)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Derrick H. Bell pleaded guilty to distribution and possession with intent to
distribute cocaine base, under a written plea agreement. PSR ¶ 73. Initially, on January
28, 2005, Bell was sentenced to serve a 170 month term of incarceration. Id. In July,

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Bell initially attempted to file this motion pro se, but the Federal Public Defender’s1
office had already been appointed to represent him. Thus, the District Court entered an
order striking the pro se motion without prejudice because he was now represented by
counsel. Bell made a motion to reinstate his pro se motion and this was denied. He then
appealed this denial to the Third Circuit but the appeal was dismissed upon agreement of
the parties. Bell, with counsel, filed another motion for a reduction of his sentence on
July 8, 2008 which was denied. This denial is before us today.
The District Court had jurisdiction under 18 U.S.C. § 3231 and 3582(c)(2). We have2
jurisdiction under 28 U.S.C. § 1291.
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2006, the Government moved for a twelve-month reduction in Bell’s sentence under the
Federal Rules of Criminal Procedure Rule 35(b) because of his substantial assistance to
law enforcement. The District Court granted this motion and reduced Bell’s term of
imprisonment to 158 months. Subsequently Bell filed a motion to reduce his sentence
pursuant to 18 U.S.C. § 3582(c) based on the amendments to the Sentencing Guidelines
for cocaine base offenses. On August 28, 2008, the District Court denied this motion and
issued a Pronouncement of Ineligibility. Bell appealed this judgment. We will affirm.1 2
At the initial sentencing hearing, the District Court fully adopted the Pre-Sentence
Report (PSR) which calculated Bell’s base offense level of 32 based upon the weight of
the cocaine base (at least 50, but less than 150, grams), U.S.S.G. § 2D1.1, and a criminal
history of VI as a result of several criminal convictions. His guidelines range, according
to the PSR, was 210 to 240 months, reduced from 210 to 262 months because there was
also a statutorily authorized maximum sentence of 20 years. PSR ¶ 71; see also 21 U.S.C.
§ 841(b)(1)(c). The PSR recited that Bell was a career offender, under U.S.S.G. § 4B1.1,

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because he was 18 years or older at the time of the commission of the instant offense, the
offense was a felony involving a controlled substance, and he had at least two prior felony
convictions for controlled substances. PSR ¶ 21. His career offender guideline range
was the same as his drug-weight-based range: 210 to 240 months.
Based upon a recommendation from the government, the District Court also
granted Bell a two-point downward departure for acceptance of responsibility under
U.S.S.G. § 3E1.1. A-29. Accordingly, Bell’s offense level was 30, and his new guideline
range was 168 to 210. While the District Court did not explicitly reference the career
offender guideline during the sentencing hearing, it adopted in full the PSR, which had
found Bell to be a career offender. A-29. At no time did Bell ever contest the PSR
designation that he qualified as a career offender under the U.S.S.G. As noted, the
District Court initially sentenced Bell to term of 170 months which was subsequently
reduced to a term of 158 months.
“In November 2007, the Sentencing Commission amended the crack cocaine
guidelines [ Amendment 706] by revising a portion of the drug quantity table at §
2D1.1(c). Generally, Amendment 706 reducing the base offense levels for crack cocaine
offenses under § 2D.1(c) by two levels.” United States v. Mateo, 560 F.3d 152, 154 (3d
Cir. 2009). The Commission declared the amendment to be retroactive. Id. Upon motion,
a district court may reduce the sentence of a defendant “who has been sentenced to a term

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We review the District Court’s interpretation of the sentencing guidelines de novo;3
however, we review the court’s decision to “deny a defendant’s motion to reduce
sentence under§ 3582(c) for abuse of discretion.” Mateo, 560 F.3d at 154.
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of imprisonment based on a sentencing range that has subsequently been lowered by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
The District Court found Bell ineligible for further sentence reduction under
Amendment 706 because he was sentenced as a career offender. As noted, the District3
Court adopted the PSR in toto which designated Bell as a career offender. Bell never
lodged an objection that he was not a career offender. This designation is a bar to
eligibility for a reduction under 18 U.S.C. § 3582(c).
“The applicable policy statement instructs that any reduction in sentence is . . . not
authorized by 18 U.S.C. § 3582(c) if an amendment does not have the effect of lowering
the defendant’s applicable guideline range.” Mateo, 560 F.3d at 154 (quoting U.S.S.G. §
1B1.0(a)(2)(B)). The guidelines provide that “if the offense level for a career offender . .
. is greater than the offense level otherwise applicable, the [criminal offender] offense
level . . . shall apply.” U.S.S.G. § 4B1.1. Therefore, even if Bell were to receive the
amendment reduction, it would not change the applicable guideline range because the
higher offense level for a career offender under the guidelines would apply.
Because Bell would be still be sentenced under the same guideline range under
U.S.S.G. § 4B1.1, regardless of the amendment, he does not qualify to have his sentence
reduced pursuant to 18 U.S.C. § 3582(c).

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We will affirm the judgment of conviction and sentence.

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