United States of America v. Dion Muth

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2286
UNITED STATES OF AMERICA
v.
DION MUTH,
Appellant.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 1-06-cr-00170-001)
District Judge: Hon. Sylvia H. Rambo
Submitted under Third Circuit LAR 34.1(a)
on November 17, 2009
Before: AMBRO, ALDISERT and ROTH, Circuit Judge
(Opinion filed: March 24, 2010)
O P I N I O N
ROTH, Circuit Judge:
Dion Muth appeals the denial of his motion for a sentence reduction under 18
U.S.C. § 3582(c)(2). The District Court had jurisdiction under 18 U.S.C. § 3231, and this
Court has jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s

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interpretation of the Sentencing Guidelines is de novo, and our review of its decision to
deny Muth’s sentence reduction is for abuse of discretion. United States v. Mateo, 560
F.3d 152, 154 (3d Cir. 2009).
Because we write primarily for the parties, we only briefly recite the facts. Muth
pleaded guilty to charges of possession with intent to distribute crack cocaine and powder
cocaine, in violation of 21 U.S.C. § 841(a)(1). The United States Probation Office
calculated a base offense level of 30 for this crime and an offense level of 32 under the
Career Offender enhancement, U.S.S.G. § 4B1.1. The District Court applied the higher
offense level of 32, pursuant to § 4B1.1(b), in sentencing Muth to 150 months.
Subsequently, the United States Sentencing Commission retroactively amended the
guidelines concerning crack cocaine, generally reducing the base offense levels by two.
U.S.S.G.App. C, Amend. 706 (Nov. 1, 2007). Muth then moved for a sentence reduction
under 18 U.S.C. § 3582(c)(2) based on that amendment. The District Court found that
Amendment 706 did not apply to Muth, since his sentence was based on the Career
Offender enhancement and not his crack cocaine conviction, consistent with this Court’s
Mateo decision.
This Court determined in Mateo that Amendment 706 does not apply to career
offenders because their sentences are based on the Career Offender enhancements instead
of the crack cocaine offense levels. 560 F.3d at 155. Muth acknowledges that Mateo is
controlling, but he appeals this decision for the purpose of preserving this issue for future

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review. Because Mateo is clear and controlling, we will affirm the judgment of the
District Court.

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