NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1543
___________
UNITED STATES OF AMERICA
v.
DEPREME T. SAPP
a/k/a Dupreme T. Sapp
Depreme T. Sapp, Appellant
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal Action No. 1-98-cr-00031-001)
District Judge: Sue L. Robinson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 22, 2012
Before: SCIRICA, GREENAWAY, JR., AND VAN ANTWERPEN, Circuit Judges
(Opinion filed: August 22, 2012)
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OPINION
___________
PER CURIAM
Depreme T. Sapp, proceeding pro se, appeals from the District Court’s order
denying his motion for a sentence reduction. For the reasons that follow, we will affirm.
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I. Background
In 1998, Sapp pleaded guilty to conspiracy to possess with intent to distribute
cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1),(b)(1)(A) and 846. In
light of his criminal history, he was sentenced as a career offender under § 4B1.1 of the
Sentencing Guidelines. As a career offender, Sapp had a criminal history category of VI,
and after an adjustment based on acceptance of responsibility, he had a total offense level
of 34, higher than his offense level would have been had it been based on drug quantity.
See U.S.S.G. § 4B1.1(b) (“if the offense level for a career offender . . . is greater than the
offense level otherwise applicable, the offense level [for a career offender] shall apply.”).
The District Court sentenced him to a term of 262 months of imprisonment, within the
guideline range of 262-to-327 months. See U.S.S.G. Sentencing Table, Ch. 5, Pt. A. 1
In 2010, Sapp filed a pro se motion for reduction of sentence pursuant to 18
U.S.C. § 3582(c)(2). He argued that his sentence should be reduced based on Spears v.
United States, 555 U.S. 261 (2009), and Amendment 750 to the Sentencing Guidelines. 2
An Assistant Federal Public Defender was then appointed to determine whether Sapp
1
In 2008, Sapp filed a pro se motion for reduction of sentence pursuant to 18
U.S.C. § 3582(c)(2), asserting that Amendment 706 to the Sentencing Guidelines reduced
his guideline range. The District Court denied the motion.
2
Sapp requested a reduction in sentence based on the Fair Sentencing Act of 2010.
Amendment 750, which took effect on November 1, 2011, re-promulgated as permanent
a temporary amendment that implemented the Fair Sentencing Act of 2010. See U.S.
Sentencing Guidelines Manual app. C, vol. III, Amend. 750.
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might qualify for a reduction of sentence. Sapp’s appointed counsel determined,
however, that Sapp was not eligible for a reduction of sentence and filed a motion to
withdraw as counsel. The District Court granted counsel’s motion to withdraw and
denied the motion for reduction of sentence. Sapp timely appealed. In his brief in
support of his appeal, Sapp argues that he should be resentenced based on Spears and
Amendment 750, and he contends that U.S.S.G. § 1B1.10 is unconstitutional.
II. Discussion
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court's
interpretation of the Sentencing Guidelines de novo. United States v. Mateo, 560 F.3d
152, 154 (3d Cir. 2009). We review a district court's ultimate decision to deny a motion
pursuant to § 3582(c) for abuse of discretion. Id.
To be eligible for a reduction in sentence, a defendant must have “been sentenced
to a term of imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2). Thus, a reduction
in sentence pursuant to § 3582(c)(2) is available only if a Guidelines amendment has “the
effect of lowering the sentencing range actually used at sentencing.” United States v.
Thompson, 682 F.3d 285, 287 (3d Cir. 2012) (quoting Mateo, 560 F.3d at 155) (emphasis
in original). Amendment 750, which lowered the base offense levels for certain
quantities of crack cocaine in U.S.S.G. § 2D1.1, would not lower Sapp’s base level and
subsequent sentencing range. This is so because Sapp’s base level and sentencing range
were actually based on his career offender status, not on his crack cocaine quantity levels.
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See U.S.S.G. § 4B1.1(b); Thompson, 682 F.3d at 287.
Sapp is also not eligible for a sentence reduction under Spears. The Court in
Spears concluded “that district courts are entitled to reject and vary categorically from the
crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” 555
U.S. at 265-66. However, employing a lower crack-to-powder ratio under Spears would
have no effect on Sapp’s base offense level or sentencing range, as he was sentenced
based on the career offender guideline, not via the guidelines based on drug quantity.
Moreover, even if Sapp qualified for a sentence reduction under § 3582(c)(2), he would
not be entitled to a full-scale resentencing where the court might depart pursuant to
Spears. See Dillon v. United States, 130 S. Ct. 2683, 2694 (2010) (emphasizing the
narrowness of the § 3582(c)(2) proceeding). Accordingly, the District Court did not
abuse its discretion in determining that Sapp could not benefit from Spears. See
Thompson, 682 F.3d at 288.
Finally, Sapp argues that U.S.S.G. § 1B1.10 is unconstitutional because its
mandatory provisions violate Article III of the United States Constitution by preventing a
court from exercising its discretion under 18 U.S.C. § 3582(c)(2). As the Government
observes, Sapp did not make this argument in the District Court, so our review might be
limited to plain-error review. See, e.g., United States v. Vazquez, 271 F.3d 93, 99 (3d
Cir. 2001) (en banc). But there is no error at all, plain or otherwise.
Sapp takes particular issue with the following section of § 1B1.10:
In determining whether, and to what extent, a reduction in the
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defendant's term of imprisonment under 18 U.S.C. 3582(c)(2)
and this policy statement is warranted, the court shall
determine the amended guideline range that would have been
applicable to the defendant if the amendment(s) to the
guidelines listed in subsection (c) had been in effect at the
time the defendant was sentenced. In making such
determination, the court shall substitute only the amendments
listed in subsection (c) for the corresponding guideline
provisions that were applied when the defendant was
sentenced and shall leave all other guideline application
decisions unaffected.
U.S.S.G. § 1B1.10(b)(1) (emphasis added). Sapp contends that the use of “shall” in the
policy statement prevents a court from exercising the discretion provided to it by
Congress to reduce a sentence under 18 U.S.C. § 3582(c)(2). We perceive no flouting of
Congressional intent, however, as the language of § 3582(c)(2) itself explicitly cabins a
court’s discretion by requiring it to follow the “applicable policy statements” of the
Sentencing Commission. Furthermore, to the extent that Sapp’s argument is that
Congress may not limit a sentencing court’s ability to exercise its own discretion in any
way and at any point, even long after the original sentence becomes final, he recognizes,
as he must, that Supreme Court precedent holds otherwise. See Notice of Appeal, 4-5;
see also Dillon, 130 S. Ct. at 2692 (“proceedings under § 3582(c)(2) do not implicate the
Sixth Amendment right to have essential facts found by a jury”).
For the reasons stated above, we will affirm the District Court’s order.
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