                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 10-1141
                                    ______________

                                   UNITED STATES

                                           v.

                                 ELDRIDGE CLARK,
                                           Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                       (D.C. Crim. Action No. 99-CR-00274)
                  District Judge: Honorable William W. Caldwell


                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 15, 2010


        Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges

                            (Opinion Filed: August 26, 2010)


                                       OPINION

GREENAWAY, JR., Circuit Judge

      Eldridge Clark appeals from the judgment of the United States District Court for

the Middle District of Pennsylvania denying his motion for a reduction of sentence,

pursuant to 18 U.S.C. § 3582(c)(2). In denying Clark’s § 3582(c)(2) sentence reduction
motion, the District Court determined that it lacked authority to reduce Clark’s sentence

under United States v. Mateo, 560 F.3d 152 (3d Cir. 2009). We will affirm.

                                   I. BACKGROUND

       We write solely for the benefit of the parties and recount only the essential facts.

On December 30, 1999, Clark pled guilty to Count I of the indictment, which charged

him with distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1).

       Prior to Clark’s sentencing, the Probation Office prepared a Presentence

Investigation Report that calculated Clark’s total offense levels under both the United

States Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”) provisions for career

offenders (“Career Offender Guidelines”), pursuant to U.S.S.G. § 4B1.1, and under the

crack cocaine Guidelines (the “Crack Cocaine Guidelines”), pursuant to the drug quantity

table in U.S.S.G. § 2D1.1(c). Under the Career Offender Guidelines, Clark’s total

offense level was 31. Under the Crack Cocaine Guidelines, his total offense level was 33.

       The parties disagreed as to certain sentence enhancements that were potentially

applicable to the Crack Cocaine Guidelines calculation. At sentencing, the District Court

noted that the parties’ factual disagreements as to the enhancements were “moot.” Based

on a review of Clark’s sentencing transcript, it appears that the District Court applied the

Career Offender Guidelines because, had the District Court ruled in Clark’s favor on the

disputed enhancements pertinent to the Crack Cocaine Guidelines, the Career Offender




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Guidelines would have resulted in the greater total offense level.1 Clark raised no

objection to his career offender status. In fact, in his presentencing submission to the

District Court, he indicated his belief that the District Court should apply the Career

Offender Guidelines. During sentencing, Clark’s counsel urged that the total offense

level should be 31 because Clark was a career offender.

       The District Court calculated Clark’s total offense level to be 31 and his criminal

history category to be VI, which produced a Guidelines sentencing range of 188 to 235

months. On May 15, 2000, the District Court sentenced Clark to a term of imprisonment

in the middle of the then-mandatory Guidelines range—200 months.

       On March 7, 2008, Clark filed a pro se motion to reduce his sentence under

§ 3582(c)(2). The District Court appointed counsel, who submitted a supplemental brief

on Clark’s behalf. The District Court denied Clark’s § 3582(c)(2) motion. On the Order

Regarding Motion for Sentence Reduction, the District Court filled in the “original” and

the “amended” Guidelines range with the identical range applied in the May 15, 2000

sentencing—188 to 235 months. The District Court, citing to our decision in United

States v. Mateo, 560 F.3d 152, 154 n.1 (3d Cir. 2009), noted that it lacked authority to




  1
       U.S.S.G § 4B1.1 instructs that a district court apply the career offender offense
level, instead of the drug offense calculation, if the career offender offense level results in
a greater offense level. Neither party contends that the District Court was without
authority to apply the career offender offense level although it resulted in a lower offense
level.

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reduce Clark’s sentence. Clark filed a timely appeal.

                 II. JURISDICTION and STANDARD OF REVIEW

        The District Court had jurisdiction over the underlying criminal case, pursuant to

18 U.S.C. § 3231. Our jurisdiction arises under 28 U.S.C. § 1291. We exercise de novo

review of a district court’s interpretation of the Guidelines, Mateo, 560 F.3d at 154, and a

district court’s determination of its own authority to reduce a sentence, United States v.

Sanchez, 562 F.3d 275, 277-78 & n.4 (3d Cir. 2009), cert. denied, 130 S.Ct. 1053 (2010).

We review a district court’s ultimate decision to grant or deny a defendant’s motion to

reduce his sentence for abuse of discretion. Mateo, 560 F.3d at 154; see also 18 U.S.C.

§ 3582(c)(2) (stating that a district court, “in the case of a defendant who has been

sentenced to a term of imprisonment based on a sentencing range that has been

subsequently lowered,” may reduce the defendant’s sentence “after considering” section

3553(a) factors and policy statements issued by the Sentencing Commission).

                                     III. ANALYSIS

       In Clark’s appellate brief, he does not specifically assert that his sentence was

“based on” the Guidelines section applicable to crack cocaine offenses. See 18 U.S.C.

§ 3582(c)(2) (permitting courts to reduce a defendant’s sentence if the “term of

imprisonment [was] based on a sentencing range that has subsequently been lowered by

the Sentencing Commission”); see U.S.S.G. app. C., amend. 706 (2007), made retroactive

by amend. 713 (2008) (amending the drug quantity table for U.S.S.G. § 2D1.1)

                                              4
(hereinafter “Amendment 706”). Clark, nevertheless, appears to reiterate his contention

that his sentence should be reduced as a result of the retroactive two-level reduction of the

base offense level calculation for crack cocaine offenses, available under Amendment

706. (Appellant’s Br. 13) (“[T]his Court should . . . remand with directions to grant the

motion—permitting Clark to receive the benefit of the two-level reduction . . . .”).

       Clark also preserves his argument that the District Court denied him a full

resentencing, and improperly treated the Guidelines as mandatory. See United States v.

Booker, 543 U.S. 220, 245 (2005) (excising the provision, 18 U.S.C § 3553(b)(1), that

made the Guidelines mandatory). Specifically, Clark maintains that, under Booker, the

District Court must, at a minimum, consider whether the sentencing factors enumerated in

18 U.S.C. § 3553(a) warrant a reduction of Clark’s sentence. See id. at 245 (determining

that courts may “tailor the sentence” in consideration of the sentencing factors listed in

§ 3553(a)).

       It is unclear from Clark’s submission whether Clark contends that Booker permits

the District Court to further reduce his sentence, if he is eligible for a § 3582(c)(2)

sentence reduction, or to independently reduce his sentence, regardless of his eligibility

under § 3582(c)(2). As the Government correctly notes, we cannot address Clark’s

appeal without assessing, in the first instance, whether Clark is statutorily eligible for a

sentence reduction, pursuant to his § 3582(c)(2) motion.

       A district court’s jurisdiction to correct or modify a defendant’s sentence is limited

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to those specific circumstances enumerated by Congress in 18 U.S.C. § 3582. Generally,

“a judgment of conviction that includes [a sentence of imprisonment] constitutes a final

judgment.” 18 U.S.C. § 3582. Congress provides a limited exception to this rule of

finality, in § 3582(c)(2), by permitting a district court to reduce a defendant’s sentence if

the sentence was “based on a sentencing range that has subsequently been lowered by the

Sentencing Commission.” 2

       In examining the issue of statutory eligibility for sentence reduction, we rely on

our decision in Mateo. In that case, we observed that “[t]o be entitled to a reduction of

sentence, a defendant’s sentencing range must have been lowered by recalculation based

on the amended base offense level.” 560 F.3d at 154 (emphasis deleted). The crack

cocaine amendment, Amendment 706, only applies to sentences based on the drug

quantity table and does not apply to sentences based on the Career Offender Guidelines.

Id. at 155 (“Amendment 706 only affects calculation under § 2D1.1(c), and the lowering

of the base offense level under § 2D1.1(c) has no effect on the application of the career


  2
     This Court has identified two requirements for a § 3582(c)(2) sentence reduction:
“(1) the defendant’s initial sentence must have been ‘based on a sentencing range that
has subsequently been lowered by the Sentencing Commission,’ and (2) the sentence
reduction must be ‘consistent with applicable policy statements issued by the Sentencing
Commission.’” United States v. Fleming, --- F.3d ---, 2010 WL 2902725, at *3 (3d Cir.
July 27, 2010) (quoting § 3582(c)(2)). We need not discuss the second statutory
requirement because Clark is unable to satisfy the first statutory requirement. See United
States v. Doe, 564 F.3d 305, 312-14 (3d Cir. 2009) (noting that statutory directives
pertaining to sentencing are not “optional” even though “[t]he Guidelines are no longer
mandatory”).

                                              6
offender level required by § 4B1.1.”).

          Because the Sentencing Commission has not lowered the sentencing range

applicable to career offenders under U.S.S.G. § 4B1.1(b), id., the District Court correctly

determined that a sentence reduction in Clark’s term of imprisonment was unwarranted.

          Rather than focusing on his statutory eligibility for a sentence reduction under

§ 3582(c)(2), Clark contends that “the District Court’s ruling that no further sentence

reduction was warranted for Clark denied him a full resentencing under United States v.

Booker, and erroneously treated the Sentencing Guidelines as mandatory.” (Appellant’s

Br. 2.)

          Clark, however, concedes that this Court has rejected this argument in United

States v. Dillon (Dillon I), 572 F.3d 146 (3d Cir. 2009). In Dillon I, we “conclude[d] that

Booker does not apply to [the] size of a sentence reduction that may be granted under §

3582(c)(2).” 572 F.3d at 149. We determined that the lower court properly ruled that it

lacked authority to further reduce the defendant’s amended Guidelines range. Id.

          Since the filing of Clark’s appeal, the Supreme Court affirmed Dillon I in Dillon v.

United States (Dillon II), --- U.S. ---,130 S.Ct. 2683 (2010). In Dillon II, the Supreme

Court reasoned that, “[b]y its terms, § 3582(c)(2) does not authorize a sentencing or a

resentencing proceeding. Instead it provides for the modif[ication of] a term of

imprisonment by giving courts the power to reduce an otherwise final sentence in

circumstances specified by the Commission.” 130 S.Ct. at 2690 (alteration in original

                                                7
and quotation marks omitted). The Court emphasized that “the provision applies only to a

limited class of prisoners—namely, those whose sentence was based on a sentencing

range subsequently lowered by the Commission.” Id.

       The Dillon precedents address the degree of reduction available to defendants who

are statutorily eligible for a sentence reduction. Because Clark cannot establish that he is

statutorily eligible for any sentence reduction under § 3582(c)(2), Clark’s discussion of a

“further reduction” is to no avail, and Dillon I and Dillon II are inapposite. Thus, the

District Court properly determined that Booker did not provide the District Court

authority to reduce Clark’s sentence at all.

                                   III. CONCLUSION

       Based on the foregoing, we will affirm the District Court’s judgment.




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