United States of America v. MICHAEL McKINNON

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-3372
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UNITED STATES OF AMERICA
v.
MICHAEL McKINNON,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 03-cr-00251-005)
District Judge: Honorable Sylvia H. Rambo
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Submitted Under Third Circuit L.A.R. 34.1(a),
May 21, 2010
Before: FUENTES, HARDIMAN and NYGAARD, Circuit Judges.
(Opinion Filed: June 28, 2010)
OPINION OF THE COURT
FUENTES, Circuit Judge:
Michael McKinnon appeals from the District Court’s ruling denying his motion for

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The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 32311
and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291. While we review a
district court’s interpretation of the Sentencing Guidelines de novo, we review the
court’s ultimate sentencing determination for abuse of discretion. See United States v.
Mateo, 560 F.3d 152, 154 (2009).
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a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). For the following reasons, we
affirm the District Court’s judgment.1
I.
Because we write primarily for the parties, we discuss the facts only to the extent
necessary for resolution of the issue on appeal.
A jury convicted McKinnon of distributing and possessing with intent to distribute
cocaine base, cocaine powder, and marijuana; conspiracy to commit money laundering;
and possessing firearms in furtherance of drug trafficking. McKinnon’s offense level was
43 and his criminal history category was V, resulting in a guideline range that included life
imprisonment. McKinnon made no factual objections to the PSR. The District Court
sentenced McKinnon to 480 months imprisonment, including: 396 months for the
substantive drug offense, to be served concurrent to 240 months for the conspiracy, and 84
months for the firearms violation, to be served consecutively.
Based on the United States Sentencing Commission’s retroactive crack cocaine
amendment, McKinnon filed a motion for a sentence reduction pursuant to 18 U.S.C. §
3582(c)(2). The District Court denied McKinnon’s motion, issuing an order stating:
Initially, the defendant was facing a guideline range of life

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The Government contends that we need not reach McKinnon’s constitutional2
issue because “there is no reason to believe the district court denied [McKinnon’s]
sentence reduction in mandatory reliance on section 1B1.10(b)(2)(B).” Appellee’s Br. at
23. The U.S. Probation Office recommended that U.S.S.G. § 1B1.10(b)(2)(B) counseled
against application of Amendment 706 since McKinnon’s sentence constituted a non-
guideline sentence pursuant to § 3553(a) and Booker. See Addendum on Defendant
Requesting Sentence Reduction, at 3 (July 15, 2009). Although it did not explicitly state
that it treated U.S.S.G. § 1B1.10(b)(2)(B) as mandatory, the language used by the District
Court to deny McKinnon’s motion mirrors the Policy Statement’s language. Therefore,
for the purposes of disposing of McKinnon’s appeal only and absent any indication to the
contrary, we assume that the District Court treated U.S.S.G. § 1B1.10(b)(2)(B) as
mandatory.
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imprisonment. The court imposed a sentence outside the
guidelines to meet sentencing goals but no greater than
necessary. A forty year total term of imprisonment was the
objective of the court. Since there was a mandatory 7 year
consecutive sentence [on the firearms count], this court imposed
a 33 year term on [the substantive drug offense], a 20 year
concurrent term on the [conspiracy count], & a 7 year
consecutive term on [the firearms count] for a total term of 480
months. This variance reflected the concern raised by the
defendant at sentencing. No further reduction is warranted.
(App. 3)2
III.
McKinnon contends that the District Court erroneously treated U.S.S.G. §
1B1.10(b)(2)(B) as mandatory in violation of United States v. Booker, which held that
treating the Guidelines as conclusively binding violated a defendant’s Sixth Amendment
right to trial by jury. 543 U.S. 220, 244 (2005). Recognizing that our precedent in United
States v. Dillon, 572 F.3d 146 (3d Cir. 2009) clearly forestalled this argument, McKinnon

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nonetheless preserved this issue for appeal in light of the Supreme Court’s grant of
certiorari in Dillon. We held the case C.A.V. pending the Supreme Court’s resolution of
that case.
Recently, the Supreme Court affirmed our ruling in Dillon, holding that Booker,
“which rendered the Guidelines advisory to remedy the Sixth Amendment problems
associated with a mandatory sentencing regime, [does not] require[] treating § 1B1.10(b)
as nonbinding.” Dillon v. United States, — S. Ct. —, 2010 WL 2400109, *2 (2010).
Specifically, the Court ruled that a sentence modification pursuant to § 3582(c)(2) was not
“constitutionally compelled” and merely represented a “congressional act of lenity
intended to give prisoners the benefit of later enacted adjustments to the judgments
reflected in the Guidelines.” Id. at *7. In turn, the Supreme Court rejected Dillon’s
characterization of a § 3582(c)(2) proceeding as a “resentencing.” Id. at *5. In light of
Dillon, it is clear that the District Court did not err by treating U.S.S.G. § 1B1.10(b)(2)(B)
as mandatory when it denied McKinnon’s motion for a sentence reduction.
IV.
For the foregoing reasons, we affirm the judgment of the District Court.

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