United States v. Michael McKinnon, 3rd Cir. (2012)

CLD-163
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-4631
___________
UNITED STATES OF AMERICA
v.
MICHAEL MCKINNON,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 1:03-cr-00251-005)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
April 19, 2012
Before: RENDELL, HARDIMAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed May 3, 2012)
_________
OPINION
_________
PER CURIAM
Michael McKinnon, a federal prisoner proceeding pro se, appeals from the District
Courts denial of the latest of his several challenges to his sentence. For the reasons that
follow, we will summarily affirm.
I.
In 2004, McKinnon was convicted of the following in the District Court:
(1) distribution and possession with intent to distribute cocaine base (crack), cocaine
hydrochloride, and marijuana; (2) conspiracy to commit money laundering; and
(3) possession of firearms in furtherance of, and during and in relation to, a drug
trafficking crime. In December 2005, the District Court sentenced him to 40 years
imprisonment, which was below the advisory range set forth under the United States
Sentencing Guidelines.1 We affirmed the judgment of sentence on direct appeal, see
United States v. McKinnon, 301 F. Appx 117, 119 (3d Cir. 2008), and the United States
Supreme Court subsequently denied McKinnons petition for a writ of certiorari.
In late 2008, McKinnon, proceeding pro se, moved the District Court to modify
his sentence pursuant to 18 U.S.C. 3582(c)(2), arguing that a reduction was warranted
in light of Amendment 715 to the Guidelines.2 That amendment, which became effective
on May 1, 2008, and was made retroactive by Amendment 716, applied Amendment
706s two-level reduction of the base offense level for crack offenses to offenses that
involved both crack and at least one other controlled substance. See U.S.S.G. app. C.,
amends. 715-16 (Supp. May 1, 2008); United States v. Mateo, 560 F.3d 152, 154 (3d Cir.
2009) (summarizing Amendment 706). On July 31, 2009, the District Court denied
McKinnons motion, stating that
1
2
McKinnons advisory sentencing range under the Guidelines was life imprisonment.
McKinnon was subsequently appointed counsel for the purposes of this motion.
2
[i]nitially, the defendant was facing a guideline range of life

imprisonment. The court imposed a sentence outside the
guidelines to meet sentencing goals but no greater than
necessary. . . . This variance reflected the concern raised by
the defendant at sentencing.
No further reduction is
warranted.
(Dist. Ct. Order entered July 31, 2009.) We subsequently affirmed the District Courts
judgment. See United States v. McKinnon, 385 F. Appx 216, 218 (3d Cir. 2010).
In June 2010, McKinnon, proceeding pro se, moved the District Court to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. 2255, raising a number of
claims. The District Court denied that motion on the merits in May 2011, and we later
denied his related application for a certificate of appealability. See C.A. No. 11-3246.
On October 31, 2011, the District Court received two more pro se filings from
McKinnon one titled Motion To Reconsider[] This Courts Order Of July 31, 2009
Denying Relief Pursuant To 18 U.S.C. 3582(c)(2), and the other titled Motion To
Make Additional Findings Of Fact In Support Of Amending/Altering The July 31, 2009
Order. In those motions, McKinnon alluded to, inter alia, the Guidelines crack-topowder cocaine differential. On November 9, 2011, the court issued an order addressing
the two motions. The court stated that McKinnon had not appealed from its July 31,
2009 order, and that his request for reconsideration of that order was untimely. The court
also stated that [i]t is unclear whether McKinnon is actually seeking consideration of a
reduction pursuant to 18 U.S.C. 3582(c)(2) based on the Fair Sentencing Act of 2010
(Amendment 750 to the United States Sentencing Guidelines). This Act was made
3
retroactive pursuant to 28 U.S.C. 994(u).3 (Dist. Ct. Order entered Nov. 9, 2011.) As
a result, the court directed him to submit a clarification regarding his motions. (Id.)
On November 25, 2011, the District Court received McKinnons response to its
order for clarification. This new filing, titled Motion To Clarify Defendants October
31, 2011s Motions To Construe and Apply This Courts Earlier Judgment and A Later
Inconsistent Order, [e]mphatically objected to treating his two October 31, 2011
motions as a 3582(c)(2) motion to reduce his sentence based on Amendment 750.
McKinnon indicated that, instead, he wanted the District Court to construe and apply its
December 5, 2005 Judgment under 18 U.S.C. 3553(c)s specifications, i.e., to
determine whether the July 31, 2009 Order incurred the risk of inconsistent judicial
determination(s).
On December 13, 2011, the District Court denied McKinnons three pending
motions as untimely. In doing so, the court stated that his latest motion does not
enlighten the court as to the problem he believes exists with this sentencing. The court
notes that McKinnon has been granted liberal opportunities to file motions for
reconsideration. McKinnon did not file an appeal of either the April 21, 2009 or the July
The Fair Sentencing Act (FSA) modified the statutory penalties for crack offenses by
reducing the crack-to-powder cocaine sentencing ratio from 100:1 to approximately 18:1.
See United States v. Dixon, 648 F.3d 195, 196-97 (3d Cir. 2011). Amendment 750,
which amended the Guidelines in accordance with the FSA, became both effective and
retroactive on November 1, 2011. See U.S.S.G. app. C., amends. 750, 759 (Supp. Nov.
1, 2011).
4
31, 2009, orders.4 (Dist. Ct. Order entered Dec. 13, 2011.)
McKinnon now seeks review of this latest District Court judgment.5
II.
Like the District Court before us, we find McKinnons three motions to be lacking
in clarity. To the extent he seeks to attack his judgment of sentence, he has already done
so, both on direct appeal and on collateral review, and he may not do so again here. Nor
may he relitigate his challenge to the District Courts July 31, 2009 denial of his motion
to reduce his sentence. And as he made clear in his motion to clarify, he is not seeking to
reduce his sentence in light of the FSA-related amendments to the Guidelines. In short,
none of his three motions demonstrates that his sentence should be disturbed.
Accordingly, the District Court did not err in denying these motions.6
Since this appeal does not present a substantial question, we will summarily affirm
the District Courts December 13, 2011 order. See 3d Cir. I.O.P. 10.6.
The April 21, 2009 order referenced by the District Court amended aspects of
McKinnons judgment of sentence that are not relevant here.
5
We have jurisdiction over this appeal pursuant to 28 U.S.C. 1291, and may affirm the
District Courts judgment on any basis supported by the record. See Lazaridis v.
Wehmer, 591 F.3d 666, 670 (3d Cir. 2010) (per curiam).
6
Although the District Court incorrectly stated that McKinnon had not appealed from its
July 31, 2009 order, that mistake is harmless.
5

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CLD-163

Before: RENDELL, HARDIMAN and VAN ANTWERPEN, Circuit Judges

[i]nitially, the defendant was facing a guideline range of life

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