No: 02-3032 UNITED STATES OF AMERICA v. Burrell C. Gill

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-3032
UNITED STATES OF AMERICA
v.
BURRELL C. GILL
Appellant
On Appeal from the United States District Court for the Virgin Islands
(Criminal No. 90-cr-00165)
District Court Judge: Hon. Raymond L. Finch, Chief Judge
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 29, 2003
Before: ROTH, M cKEE, Circuit Judges, and COWEN, Senior Circuit Judge
(Filed: June 23, 2003 )
OPINION OF THE COURT
PER CURIAM.
Burrell Gill appeals the district court’s denial of his motion for a reduction of
sentence under to 18 U.S.C. §3582(C)(2). Our review of legal questions concerning the
proper interpretation of the Sentencing Guidelines is plenary. United States v. Thompson,
70 F.3d 279, 280 (3d Cir. 1995). For the reasons that follow, we will affirm.
Inasmuch as we write only for the parties, we need not recite the factual
background of this case. Gill argues that the district court erred by failing to retroactively
apply United States Sentencing Guideline Amendments 500 and 518 in deciding his

-- 1 of 4 --

1 In reaching our decision, we note that our analysis is the same whether we apply the
2003 policy statement or the 2002 policy statement. Gill’s motion was filed in June 2002
and denied a month later. The last change to the policy statement was made in 2000.
2
motion for a reduction of sentence. The applicable statute, 18 U.S.C. §3582(C)(2),
provides in relevant part, that
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 pursuant to 28 U.S.C.
994(o), upon motion of the defendant or the Director of the Bureau
of Prisons, or on its own motion, 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. §3582(C)(2) (2003). The Sentencing Commission’s most recent policy
statement regarding the retroactivity of amended guidelines states that:
(a) Where a defendant is serving a term of imprisonment, and the
guideline range applicable to that defendant has subsequently been
lowered as a result of an amendment to the Guidelines Manual listed
in subsection (C) below, a reduction in the defendant's term of
imprisonment is authorized under 18 U.S.C. § 3582(C)(2). If none of
the amendments listed in subsection (C) is applicable, a reduction in
the defendant's term of imprisonment under 18 U.S.C. § 3582(C)(2)
is not consistent with this policy statement and thus is not authorized.
. . .
(C) Amendments covered by this policy statement are listed in
Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371, 379,
380, 433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591, 599, and
606.
U.S.S.G. § 1B1.10 (2003).1 Since Amendments 500 and 518 are not listed in subsection
(C), neither may be applied retroactively pursuant to §3582(C)(2). We addressed a

-- 2 of 4 --

2 Gill, in arguing for retroactivity, relies on United States v. Marmolejos, 140 F.3d 488,
491 (3d Cir. 1998) which noted that “courts can give retroactive effect to a clarifying (as
opposed to substantive) amendment regardless of whether it is listed in U.S.S.G.
§1B1.10.” However, unlike Gill, in Marmolejos the retroactivity question was raised by
the defendant’s motion for habeas relief under 28 U.S.C. §2255. But see United States v.
Edwards, 309 F.3d 110, 112 (3d Cir. 2002) (relying on Marmolejos and considering
whether a Sentencing Guideline amendment was substantive or clarifying before deciding
that the amendment was not retroactively applicable).
3
similar issue in Thompson. There, we held that Amendment 459 does not apply
retroactively on a §3582(C)(2) motion. 70 F.3d 279, 281 (3d Cir. 1995). We noted that
the “language of the applicable sections could not be clearer: the statute directs the Court
to the policy statement, and the policy statement provides that an amendment not listed in
subsection (C) may not be applied retroactively pursuant to 18 U.S.C. §3582(C)(2).” Id.
Here, as in Thompson, the plain language of the Sentencing Commission’s policy
statement precludes our applying these amendments retroactively.2 Inasmuch as
Amendments 500 and 518 are not listed in subsection (C), we must affirm the decision of
the district court.

-- 3 of 4 --

4

-- 4 of 4 --