United States of America v. Daryl Douglas Dennison

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1335
UNITED STATES OF AMERICA
v.
DARYL DOUGLAS DENNISON,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Criminal No. 05-cr-0405-01
(Honorable Sylvia H. Rambo)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 2, 2009
Before: SCIRICA, Chief Judge, JORDAN and GREENBERG, Circuit Judges.
(Filed: November 19, 2009)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Defendant Daryl Douglas Dennison pleaded guilty to distribution and possession
with intent to distribute cocaine base (“crack cocaine”), in violation of 21 U.S.C. §
841(a)(1). He appeals the denial of his motion to reduce his sentence. We will affirm.

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This calculation resulted in an offense level of 34 less a three level reduction for1
acceptance of responsibility under § 3E1.1(a) and (b) or a total offense level of 31.
At the time of Dennison’s sentencing, both § 2D1.1 and § 4B1.1 provided a base2
offense level of 32. Section 4B1.1 is to be used when the base offense level provided is
higher than the offense level under the crime specific provision. U.S.S.G. Manual §
4B1.1(b).
2
I.
Dennison pleaded guilty to distribution and possession with intent to distribute
crack cocaine and was sentenced to 180 months of imprisonment with three years of
supervised release. The District Court adopted the Presentence Investigation Report
(“PSR”) with a modification. Based on Dennison’s offense level and criminal history
category, the PSR calculated an advisory Sentencing Guidelines range of 151 to 188
months.
The PSR also found Dennison to be a career offender. A career offender is a
defendant, eighteen years of age or older, convicted of a felony involving violence or a
controlled substance and with “at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S. Sentencing Guideline Manual § 4B1.1
(2008). The PSR calculated Dennison’s sentence using § 2D1.1, the drug offense table
and a gun enhancement of two levels under § 2D1.1(b)(1). However, upon motions by1
both Dennison and the Government, the gun enhancement was deleted from the
calculation. By removing the two level enhancement, Dennison’s offense level was 29
under both the drug table and the career offender provision. On February 15, 2007, the2

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18 U.S.C. § 3582(c)(2) provides a district court may reduce a defendant’s sentence3
whose “term of imprisonment [is] based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.” A court can reduce a sentence, “after
considering the factors set forth in § 3553(a) to the extent that they are applicable, if such
a reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” Id.
The District Court had jurisdiction to review Dennison’s motion for reduction of4
sentence under 18 U.S.C. § 3742(a). We have jurisdiction over Dennison’s appeal
pursuant to 28 U.S.C. § 1291.
3
District Court sentenced Dennison to 180 months of imprisonment and three years
supervised release using a total offense level of 29.
In November 2007, the Sentencing Commission reduced the base offense levels
for crack cocaine offenses under § 2D1.1(c) by two levels. U.S. Sentencing Guideline
Manual app. C, Amend. 706 (2007). The Sentencing Commission later declared
Amendment 706 applied retroactively, effective March 3, 2008. U.S.S.G. Manual §
1B1.10(a) (2008).
Subsequently, Dennison moved the District Court to reduce his sentence under 18
U.S.C. § 3582(c)(2), relying on Amendment 706. The District Court denied Dennison’s3
motion, stating that despite the Amendment, Dennison’s guideline range remained the
same and thus he was not entitled to a reduction under 18 U.S.C. § 3582(c)(2). Dennison
timely appeals the District Court’s denial of his motion. We review a court’s decision to4
deny a motion for reduction of sentence under § 3582(c)(2) for abuse of discretion. See
United States v. Styer, 573 F.3d 151, 153 (3d Cir. 2009).

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Dennison’s argument hinges on the fact that the District Court must consider the drug5
offense level. Essentially, Dennison argues because a district court must look at § 2D1.1
in order to compare its offense level to the career offender provision, the ultimate
sentence is “based on” § 2D1.1 even if the offense level provided is not used in the
overall calculation.
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II.
Dennison argues 18 U.S.C. § 3582(c)(2) authorizes a reduction in sentence even
absent a change to the sentencing range. Although his sentencing range would not
change because of the career offender provision, Dennison asserts the “based on”
language of § 3582(c)(2) requires only an amended guideline to be part of the overall
calculation of the original sentence in order to warrant a reduction. Because the District
Court reviewed § 2D1.1 in calculating his sentence, Dennison claims his sentencing5
range was “based on” an amended portion of the guidelines and entitles him to
application of Amendment 706.
The District Court did not abuse its discretion in refusing to reduce Dennison’s
sentence. Congress requires any sentence reduction pursuant to a guideline amendment to
be consistent with applicable policy statements issued by the Sentencing Commission.
See 18 U.S.C. § 3582(c)(2); see also United States v. Dillon, 572 F.3d 146, 149 (3d Cir.
2009) (holding U.S.S.G. § 1B1.10 unaffected by U.S. v. Booker and binding on district
courts through 18 U.S.C. § 3582(c)(2)). The policy statement provides: “[a] reduction in
the defendant’s term of imprisonment is . . . not authorized under 18 U.S.C. § 3582(c)(2)
if an amendment . . . does not have the effect of lowering the defendant’s applicable

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One court has held that when the career offender provision “unfairly overestimates”6
the severity of the crime, the lower offense level can be appropriate. United States v.
Poindexter, 550 F.Supp.2d 578, 582 (E.D. Pa. 2008). Unlike Poindexter, the District
Court here did not find using the career offender provision “unfairly overestimated”
Dennison’s sentence.
Rather, both the career criminal offender level and the drug base offense level
were 32 at the time of Dennison’s initial sentence. Moreover, given that the District
Court reconsidered its sentence on Dennison’s motion and declined to grant a reduction
because “[t]he guideline range remains the same under the retroactive amendment,” it is
clear that the District Court based its original determination on the career offender
provision.
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guideline range.” U.S.S.G. § 1B1.10 (a)(2)(B). Accordingly, a defendant is not entitled
to a reduction under § 3582(c)(2) when the amendment does not change the overall
guideline calculation. United States v. Mateo, 560 F.3d 152, 154-55 (3d Cir. 2009)
(citing United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008)).
Amendment 706 affects only § 2D1.1(c) of the Sentencing Guidelines. It does not
alter the application of the career offender offense level required by § 4B1.1. See Mateo,
560 F.3d at 155 (“Amendment 706 . . . has no effect on the application of the career
offender offense level”); see also United States v. Forman, 553 F.3d 585, 589 (7th Cir.
2009) (per curiam) (finding Amendment 706 “provides no benefit to career offenders.”);
United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008) (“Amendment 706 had no
effect on the career offender guidelines in § 4B1.1.”).
III.
Dennison contends the District Court explicitly relied on the drug offense level in
§ 2D1.1, not the career criminal provision, in calculating his sentence. Dennison’s6

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Dennison also argues the rule of lenity requires a reduction of his sentence. We7
previously rejected the rule of lenity argument as it pertains to Amendment 706 and §
3582(c)(2), finding the statute unambiguous. United States v. John Doe, 564 F.3d 305,
315 (3d Cir. 2009); see also Mateo, 560 F.3d at 155 (stating the language of § 3582 (c)(2)
is clear).
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sentencing range is 151 to 188 months of imprisonment irrespective of Amendment 706.
In calculating Dennison’s sentence, the District Court correctly determined he was a
career offender and relied on § 4B1.1 as the higher available base offense level upon
calculation of his sentence. Thus, the drug offense level did not factor into the District
Court’s guideline calculation and the Amendment is not applicable. Accordingly,
Dennison’s sentencing range does not merit a reduction under 18 U.S.C. § 3582(c)(2).7
Therefore, the District Court did not abuse its discretion in denying Dennison’s motion
for a reduction of sentence.
IV.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.

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