BLD-285                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-1295
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                           WALTER ALSTON BROWN, JR.,
                                             Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Civil No. 2:13-cr-00176-004)
                      District Judge: Honorable Berle M. Schiller
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 22, 2017

          Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges

                             (Opinion filed: August 8, 2017)
                                       _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Walter Alston Brown, Jr., a federal prisoner proceeding pro se, appeals from the

District Court’s denial of his motion for a sentence reduction filed under 18 U.S.C.

§ 3582(c)(2). We will summarily affirm the District Court’s judgment.

       Brown was convicted by a jury of one count of conspiracy to commit loan fraud

and wire fraud, in violation of 18 U.S.C. § 371, one count of making a false statement in

connection with an FHA loan, in violation of 18 U.S.C. §§ 1010 and 2; five counts of

loan fraud, in violation of 18 U.S.C. § 1014; and two counts of tax evasion, in violation

of 26 U.S.C. § 7201. He was sentenced to 180 months of imprisonment and ordered to

pay $7,213,123 in restitution and an additional $31,903 to the IRS. We affirmed Brown’s

conviction. United States v. Brown, 661 F. App’x 190 (3d Cir. 2016).

       On December 27, 2016, Brown filed a motion pursuant to 18 U.S.C. § 3582(c)(2)

for a reduction of sentence. Brown relied on Sentencing Guideline Amendment 791,

which amended several monetary tables in Chapter Two of the guidelines to account for

inflation, Amendment 792, which, inter alia, amended the “sophisticated means” offense

characteristic of Section 2B1.1(b)(10)(c), and Amendment 794, which amended the

“mitigating role” reduction in Section 3B1.2. U.S.S.G. app. C. supp., amends. 791, 792,

794. The District Court denied the motion. Brown appealed. Before us now is the

appellee’s motion for summary affirmance.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We generally review a district

court’s denial of a motion for reduction of sentence under § 3582(c)(2) for abuse of

discretion. United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). When a district
                                             2
court concludes that a defendant is not eligible for relief under § 3582(c)(2), however, our

review is plenary. United States v. Weatherspoon, 696 F.3d 416, 421 (3d Cir. 2012).

       A district court generally cannot modify a term of imprisonment once it has been

imposed, but a defendant may be eligible for a reduction of sentence pursuant to §

3582(c) if: (1) the sentence was “based on a sentencing range that has subsequently been

lowered by the Sentencing Commission,” and (2) “a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. §

3582(c)(2); United States v. Flemming, 723 F.3d 407, 410 (3d Cir. 2013). The relevant

policy statement permits a reduction of sentence under § 3582(c)(2) only when the

amendment that reduces the applicable guidelines range is among those listed in U.S.S.G.

§ 1B1.10(d) (formerly § 1B1.10(c)). See United States v. Wise, 515 F.3d 207, 221 &

n.11 (3d Cir. 2008).

       Brown is not eligible for a sentence reduction, as the Sentencing Commission has

not listed Amendments 791, 792, or 794 in U.S.S.G. § 1B1.10(d) as amendments that

apply retroactively.1 See U.S.S.G. § 1B1.10(d). Accordingly, the District Court did not

err in denying Brown’s motion.

       Brown’s arguments on appeal do not alter this result. Brown argues that he should

have been given the benefit of the amendments, as they went into effect while his direct

appeal was pending, but he did not request a remand during his direct appeal, and he


1
  In his brief, Brown also cites Amendment 790, but he did not present this basis for
reduction to the District Court. Even if this argument were not waived, Amendment 790
                                              3
cannot now obtain a reduction of sentence under § 3582(c), as we have explained above.

To the extent Brown attempts to raise an ex post facto claim or to assert that counsel was

ineffective for failing to seek a remand, he has not provided a basis for a sentence

reduction; such claims would instead be properly brought in a 28 U.S.C. § 2255 motion.

       For the foregoing reasons, we will grant the motion for summary affirmance and

affirm the District Court’s order denying Brown’s motion for a reduction of sentence.




also has not been made retroactive.
                                             4
