UNITED STATES OF AMERICA vs. THOMAS DANIELS v. Diaz, 245 F.3d 294, 301-02 3d Cir. 2001 . Amendment 706, which was later amended by…

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1423
___________
UNITED STATES OF AMERICA
vs.
THOMAS DANIELS,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2:95-cr-00369)
District Judge: Honorable Michael M. Baylson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 1, 2009
Before: Chief Judge SCIRICA, CHAGARES and WEIS, Circuit Judges
Opinion filed: July 20, 2009
_________
OPINION
_________
PER CURIAM.
Thomas Daniels, a federal prisoner proceeding pro se, appeals the District
Court’s denial of his motion for a reduced sentence. For the reasons that follow, we will
affirm.

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Amendment 591 modified the Guidelines to require a sentencing court to1
apply the offense guideline referenced in the Sentencing Manual’s Statutory Index that
corresponds to the statute under which the defendant was convicted. See United States v.
Diaz, 245 F.3d 294, 301-02 (3d Cir. 2001). Amendment 706, which was later amended
by Amendment 711, reduced by two levels the base offense levels applicable to certain
crack offenses. United States v. Wise, 515 F.3d 207, 219 & n.8 (3d Cir. 2008).
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I.
In 1996, an Eastern District of Pennsylvania jury convicted Daniels of
distributing cocaine and cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1). At
sentencing, the District Court classified Daniels as a career offender pursuant to U.S.S.G.
§ 4B1.1. Although his sentencing range under the Guidelines was 360 months to life
imprisonment, his prior felony drug convictions raised the statutory mandatory minimum
sentence to life imprisonment. See 21 U.S.C. § 841(b)(1)(A). Accordingly, the District
Court imposed a life sentence for Daniels’ crack offense and a concurrent thirty-year term
of imprisonment for his cocaine offense. On direct appeal, we affirmed the judgment of
conviction and sentence. In 1998, the District Court denied Daniels’ 28 U.S.C. § 2255
motion to vacate his sentence, and we affirmed on appeal.
In March 2008, Daniels moved the District Court to reduce his sentence
pursuant to 18 U.S.C. §§ 3582(c)(1)(B) and (c)(2) in light of Amendments 591, 706, and
711 to the Sentencing Guidelines. The court denied this motion in an order entered on1
September 23, 2008, stating that Daniels’ life sentence reflected the statutory mandatory
minimum. Daniels later filed a motion for reconsideration, which the court denied in an

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Fed. R. Crim. P. 35(b), which concerns reducing a defendant’s sentence2
based on his substantial assistance, is not relevant here.
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order entered on December 31, 2008. Daniels now appeals these two orders to this Court.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We
exercise plenary review over a district court’s determination that a defendant is ineligible
for a reduced sentence under § 3582(c). See United States v. Sanchez, 562 F.3d 275, 277
& n.4 (3d Cir. 2009); cf. United States v. Pivorotto, 986 F.2d 669, 673 (3d Cir. 1993)
(exercising plenary review over a district court’s denial of a motion filed pursuant to Fed.
R. Crim. P. 35(a)).
Under § 3582(c)(1)(B), a district court may reduce a defendant’s term of
imprisonment “to the extent otherwise expressly permitted by statute or by Rule 35 of the
Federal Rules of Criminal Procedure.” Daniels’ motion, however, did not identify an
applicable statute. Moreover, to the extent he intended to rely on Fed. R. Crim. P. 35(a) –
which provides that, “[w]ithin 7 days after sentencing, the court may correct a sentence
that resulted from arithmetical, technical, or other clear error” – the District Court was2
without jurisdiction to grant relief on this basis because the seven-day time limit had long
since expired. See United States v. Higgs, 504 F.3d 456, 464 (3d Cir. 2007) (holding that
Rule 35(a)’s seven-day time limit is jurisdictional). Even if the court would have had
jurisdiction to grant this relief, Daniels failed to show that his sentence resulted from

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Even if Daniels sought to reduce only his thirty-year concurrent sentence3
for the cocaine offense – which of course would not impact the length of his actual
imprisonment – his § 3582(c)(2) claim would still fail because none of the amendments
he cites modified the Guidelines’ career offender provision – § 4B1.1 – the guideline that
determined his sentencing range.
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arithmetical, technical, or other clear error. Accordingly, Daniels’ claim under
§ 3582(c)(1)(B) fails.
Daniels’ claim under § 3582(c)(2) also lacks merit. Under this provision, a
district court may reduce a defendant’s term of imprisonment if it was “based on a
sentencing range that has subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2). Although Daniels argues that
he is entitled to such a reduction based on Amendments 591, 706, and 711, he was
sentenced pursuant to a statutory mandatory minimum, not a guideline modified by these
amendments. Accordingly, he is ineligible for a sentence reduction. See U.S.S.G. §3
1B1.10 cmt. n.1(A) (stating that a sentence reduction pursuant to § 3582(c)(2) is not
authorized if “the amendment does not have the effect of lowering the defendant’s
applicable guideline range because of the operation of another guideline or statutory
provision (e.g., a statutory mandatory minimum term of imprisonment)”); United States v.
Doe, --- F.3d ---, 2009 U.S. App. LEXIS 9109, at *24 (3d Cir. Apr. 30, 2009) (holding
that Amendment 706 did not render defendant, who was subject to a statutory mandatory
minimum sentence of life imprisonment, eligible for a sentence reduction under §
3582(c)(2)).

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The Supreme Court’s decision in United States v. Booker, 543 U.S. 220
(2005), did not give the District Court an independent basis on which to reduce his
sentence. See United States v. Mateo, 560 F.3d 152, 155 (3d Cir. 2009) (stating that “this
Court has rejected the argument that Booker provides a basis for reduction of sentence not
otherwise allowable under § 3582(c)”). Moreover, to the extent Daniels attempts to raise
claims beyond those permitted under § 3582(c), they are outside the scope of this appeal.
Accordingly, we will affirm the District Court’s orders denying Daniels’
motion for a reduced sentence and his motion for reconsideration, respectively. Daniels’
motion for appointment of counsel and his “Motion to Take Judicial Notice of
Adjudicated Facts to Support the Annexed Informal Brief – Federal Rules of Evidence –
‘Rule 201’” are denied.
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