United States of America v. Derrick Cruz, a/k/a Reyes Benitez, a/k/a David Cruz, a/k/a "Dee”, Derrick Cruz

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4361
UNITED STATES OF AMERICA
v.
DERRICK CRUZ, a/k/a Reyes Benitez,
a/k/a David Cruz, a/k/a "Dee”,
Derrick Cruz,
Appellant.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 1-95-cr-00204-001)
District Judge: Hon. William W. Caldwell
Submitted under Third Circuit LAR 34.1 (a)
on July 17, 2009
Before: RENDELL, FUENTES and ROTH, Circuit Judges
(Opinion filed: March 18, 2010)
O P I N I O N
ROTH, Circuit Judge:
Derrick Cruz appeals the District Court order granting his motion for sentence

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This Court conducts a plenary review of questions concerning the proper1
interpretation of the Sentencing Guidelines. See United States v. Edwards, 309 F.3d 110,
112 (3d Cir. 2002).
2
reduction under 18 U.S.C. § 3582(c)(2) and denying his alternate bases for sentence
reduction. Cruz contends the District Court wrongly determined it was prohibited from
considering his other arguments for resentencing. We assume the parties’ familiarity with
the facts and record of prior proceedings, to which we refer only as necessary to explain
our decision. For the reasons given below, we will affirm the District Court’s order
granting Cruz’s section 3582(c)(2) motion and denying his other grounds for relief.1
In addition to a sentence reduction pursuant to section 3582(c)(2), to which he was
entitled, Cruz seeks further reduction on the following grounds: (1) under U.S.S.G. §
4A1.1, his criminal history category should be lowered from IV to III to account for a
conviction for attempted murder, the sentence for which he is currently serving; (2) he
should not have received a four-point increase for being a leader or organizer of the
conspiracy as there was no evidence to support such an increase; (3) his drug quantity
should have been set at 27 grams of crack cocaine, yielding a base offense level of 26,
because the witness testimony for the higher level should have been rejected as
unreliable; (4) he should not have received a two-point increase for possession of
firearms; and (5) the jury should not have received instructions allowing them to avoid
making a drug-quantity determination in violation of Apprendi v. New Jersey, 530 U.S.
466 (2000).

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3
The District Court was correct in determining that under section 3582(c)(2), Cruz
was not entitled to de novo sentencing. Section 3582(c)(2) provides that:
[I]n 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 pursuant to 28 U.S.C. 994(o), upon
motion of the defendant . . . , the court may reduce the term of
imprisonment, after considering the factors set forth in section 3553(a) to
the extent that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.
§ 3582(c)(2). Section 1B1.10(a)(3) is one such applicable policy statement that states,
“proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a
full resentencing of the defendant.” U.S.S.G. § 1B1.10(a)(3). Courts, when evaluating a
section 3582(c)(2) motion, must consider only the retroactive amendment at issue and
“leave all other guideline application decisions unaffected.” Id. § 1B1.10(b)(1); see
United States v. McBride, 283 F.3d 612, 615 (3d Cir. 2002).
As such, the District Court lacked jurisdiction to review Cruz’s alternate bases for
sentence reduction and properly refused to do so. Accordingly, we will affirm the District
Court’s order granting a sentence reduction pursuant to section 3582(c)(2) and leaving all
other provisions of the original judgment of May 1, 1996, in effect.

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