NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 18-2869 _____________

UNITED STATES OF AMERICA

v.

MARK COLEMAN, Appellant _____________

On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 2-16-cr-00139-001 District Judge: Honorable Mark R. Hornak _____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 25, 2019

Before: SMITH, Chief Judge, McKEE, and AMBRO, Circuit Judges

(Filed: September 27, 2019)

_____________________

OPINION* _____________________

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Chief Judge.

Mark Coleman pleaded guilty to a conspiracy charge for his role in a pill distribution

network. At sentencing, the District Court declined to apply a mitigating role adjustment

under United States Sentencing Guidelines § 3B1.2. On appeal, Hampton challenges the

District Court’s decision to deny the mitigating role adjustment. We will affirm.

I.

In February 2016, Coleman was released from prison and needed a place to live.

He moved in with an old friend, Walter Richardson. Richardson, who was a major player

in an illegal prescription drug ring, quickly recruited Coleman in selling prescription drugs.

Coleman was ultimately arrested and charged with one count of conspiracy to possess with

intent to distribute and distribution of oxycodone and oxymorphone, in violation of

.

Coleman pleaded guilty without the benefit of a plea agreement. Due to at least two

prior controlled substance convictions, he was categorized as a career offender—a

designation that automatically increases a defendant’s offense level to thirty-two. After

receiving a three-level reduction for acceptance of responsibility, Coleman’s total offense

level was twenty-nine. Combined with a criminal history category of VI, Coleman’s

advisory Guidelines range was 151 to 188 months. He sought a three-level reduction for

his mitigating role in the offense pursuant to § 3B1.2, which does not apply to career

offenders. See United States v. Johnson,

, 683–84 (3d Cir. 1998). Although

the District Court believed Johnson foreclosed the application of § 3B1.2 to career 2 offenders like Coleman, it judiciously went to the extra effort of analyzing the merits,

finding that Coleman was not entitled to an adjustment under § 3B1.2. The District Court

did take Coleman’s role in the offense into account when varying downward from the

Guidelines range. It sentenced Coleman to ninety-two months of incarceration with six

years of supervised release to follow.

He timely appealed.1

II.2

Coleman raises a single issue on appeal—that the District Court should be permitted

to apply the mitigating role adjustment regardless of his status as a career criminal.3

Coleman’s argument is foreclosed by United States v. Johnson. There, as here, the

defendant was a career offender under Guidelines § 4B1.1.

. The defendant

in Johnson had pleaded guilty pursuant to a plea agreement under which the government

stipulated he was entitled to a two-level downward adjustment pursuant to § 3B1.2(b). Id.

When the district court sentenced him without applying § 3B1.2(b), the defendant objected.

1 The District Court had jurisdiction under

and

(e). We exercise jurisdiction pursuant to

and

(a). 2 “We employ a mixed standard of review when considering whether a defendant was entitled to a downward adjustment as a minor participant. We exercise plenary review where the district court’s denial of a downward adjustment is based primarily on a legal interpretation of the Sentencing Guidelines. However, where the district court’s decision rests on factual determinations, we review for clear error.” United States v. Isaza-Zapata,

(3d Cir. 1998) (internal citations omitted). 3 We understand Coleman’s appeal as challenging the denial of a § 3B1.2 adjustment. To the extent he is also appealing the denial of a downward departure, we lack jurisdiction to consider such a challenge. See United States v. King,

, 141 n.9 (3d Cir. 2010). 3

The court agreed that, ordinarily, the defendant’s minor role would entitle him to an

adjustment.

But because the defendant was a career offender, the it concluded that

§ 3B1.2 was inapplicable. Id. We agreed. Id. at 684.

Walking step by step through the Guidelines calculation process, we explained that

“[t]he sequence of the Sentencing Guidelines Application Instructions . . . indicates that

downward adjustments are allowed only for acceptance of responsibility after career

offender status is imposed.” Id. at 683. Because the Guidelines “direct[] the court to adjust

the defendant’s offense level in accordance with U.S.S.G. § 4B1.1 after any minor role

enhancement is made[,] [o]ther adjustments are thus effectively overwritten [sic] by the

magnitude of the career offender upward adjustment.” Id. at 684.

Recognizing the obstacle Johnson poses, Coleman urges the Court to take the case

en banc to overrule Johnson. We are doubtful that Coleman can meet the Court’s criteria

for en banc rehearing. See 3d Cir. I.O.P. 9.3. He can point to nothing that shows Johnson

was wrongly decided, and our sister circuits have unanimously reached the same result

employing similar reasoning. See United States v. Morales-Diaz,

(1st

Cir. 1991); United States v. Perez,

, 97–98 (2d Cir. 2003) (per curiam); United

States v. Stroud,

(Table), No. 93-5700,

(4th Cir. Feb.

8, 1994) (per curiam); United States v. Cashaw,

, 273–74 (5th Cir. 2010) (per

curiam); United States v. Smith,

, 589–90 (6th Cir. 2003) (per curiam);

United States v. Ward,

(7th Cir. 1998); United States v. Beltran,

(8th Cir. 1997); United States v. McCoy,

(9th Cir. 1994)

4 (per curiam); United States v. Jeppeson,

, 1182–84 (10th Cir. 2003); United

States v. Griffin,

(11th Cir. 1997) (per curiam).

Even if we were to adopt Coleman’s preferred interpretation of the law, he would

obtain no relief. The District Court carefully considered the facts of Coleman’s case before

deciding, on the merits, that a mitigating role adjustment was unwarranted. See United

States v. Isaza-Zapata,

(3d Cir. 1998) (“The district courts are allowed

broad discretion in applying [§ 3B1.2,] and their rulings are left largely undisturbed by the

courts of appeal.”). Instead, the Court considered Coleman’s role in the offense when

weighing—and ultimately awarding—a variant sentence. Coleman has not challenged the

its application of the mitigating role adjustment and we discern no error in its decision.

III.

For the reasons set forth above, we will affirm the District Court’s judgment.

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