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United States v. Tepper

August 6, 2010

UNITED STATES OF AMERICA, APPELLEE
v.
ERNEST TEPPER, APPELLANT



Appeal from the United States District Court for the District of Columbia (No. 1:93-cr-00073).

The opinion of the court was delivered by: Garland, Circuit Judge

Submitted January 15, 2010

Before: ROGERS, GARLAND, and GRIFFITH, Circuit Judges.

In 1993, Ernest Tepper pled guilty to possessing with intent to distribute 50 grams or more of crack cocaine and was sentenced as a career offender to 262 months' imprisonment. In 2007 and 2008, the Sentencing Commission amended the sentencing guidelines that generate offense levels for crimes involving crack, but did not amend the provisions relating to career offenders. Tepper seeks a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2), which authorizes a reduction if the original sentence was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." We conclude that Tepper cannot proceed under § 3582(c)(2) because the Commission's amendments did not lower the sentencing range on which his sentence was based.

I.

On April 20, 1993, Tepper pled guilty to one count of unlawful possession with intent to distribute cocaine base, also known as "crack," in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). The Presentence Investigation Report (PSR) prepared by the United States Probation Office used the 1992 edition of the United States Sentencing Guidelines (U.S.S.G.) to calculate Tepper's guideline range. Because Tepper admitted possessing 108.8 grams of crack and 20.445 grams of heroin, the Guidelines' drug quantity table, U.S.S.G. § 2D1.1(c)(6) (1992), gave him a base offense level of 32. PSR at 5. The PSR then applied a three-level downward adjustment from the base offense level for Tepper's acceptance of responsibility and guilty plea, see U.S.S.G. § 3E1.1, which yielded a total offense level of 29. PSR at 6. The PSR also determined that Tepper's prior convictions put him in criminal history category IV. Id. at 9; see U.S.S.G. ch. 4, pt. A; id. ch. 5, pt. A.

As the PSR noted, however, Tepper qualified as a career offender under U.S.S.G. § 4B1.1, because he was older than eighteen, pled guilty to a controlled substance offense, and had two prior felony convictions for crimes of violence or controlled substance offenses. PSR at 6. This status altered both his total offense level and his criminal history category. Under the career offender guideline, Tepper's offense level rose to 37, which, after the adjustment for accepting responsibility and pleading guilty, yielded a total offense level of 34. PSR at 6. The career offender guideline also fixed his criminal history category at VI.

U.S.S.G. § 4B1.1; see PSR at 6, 9. In combination, that offense level and criminal history yielded a sentencing range of 262 to 327 months. U.S.S.G. ch. 5, pt. A (sentencing table); see PSR at 16. At Tepper's July 13, 1993 sentencing, the district court agreed that Tepper was a career offender, adopted the PSR's guidelines calculations, and sentenced him to 262 months' imprisonment -- the bottom of the guidelines sentencing range. Sentencing Tr. 20-21.

In November 2007, the United States Sentencing Commission amended the drug quantity table's crack cocaine guideline, U.S.S.G. § 2D1.1, lowering by two levels the base offense levels for most crimes involving crack cocaine. See U.S.S.G. Supp. App. C, amend. 706, 711 (2007); see also id. amend. 715 (2008). In 2008, the Commission gave those amendments retroactive effect. See id. amend. 713, 716 (2008). In light of the amendments, Tepper filed a motion to modify his term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2), which authorizes a court to reduce a term of imprisonment "in the case of a defendant who has been sentenced... based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The district court denied the motion, holding that § 3582(c)(2) did not apply to Tepper's sentence because his sentencing range was based on the career offender provisions of U.S.S.G. § 4B1.1, not on the recently-amended U.S.S.G. § 2D1.1. United States v. Tepper, Mem. Order at 1 (D.D.C. Dec. 12, 2008). This appeal followed.

II.

Section 3582(c) provides:

The court may not modify a term of imprisonment once it has been imposed except that...

(2) 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[,]... the court may reduce the term of imprisonment. if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. ยง 3582(c). As the text indicates, the district court may not reduce Tepper's sentence unless it was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Because Tepper's appeal turns solely on the meaning of that statutory phrase, we review the ...


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