                                            NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

        Nos. 09-2481, 09-2482 and 09-2483
                 _____________

         UNITED STATES OF AMERICA

                        v.

               SANTOS MENDEZ,
                       Appellant
                 _____________

         UNITED STATES OF AMERICA

                        v.

             JOSE A. MENDEZ, JR.,
               a/k/a Jose Valentine,
                   a/k/a Rambo

                  Jose A. Mendez,
                       Appellant
                 _____________

         UNITED STATES OF AMERICA

                        v.

               LOUIS CORDERO,
                  a/k/a Louie

                   Louis Cordero,
                       Appellant
                 _____________

    Appeals from the United States District Court
       for the Eastern District of Pennsylvania
(D.C. Criminal Nos. 2-03-cr-00088-001, 002 and 006)
                      District Judge: Honorable Michael M. Baylson
                                      _____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 4, 2010

                Before: SCIRICA, RENDELL and ROTH, Circuit Judges

                            (Opinion Filed: November 5, 2010)
                                     _____________

                               OPINION OF THE COURT
                                   _____________

RENDELL, Circuit Judge.

   Santos Mendez, Jose Mendez, and Louis Cordero (“defendants”) appeal the May 11,

2009 orders of the United States District Court for the Eastern District of Pennsylvania

denying their motions to reduce their sentences pursuant to 18 U.S.C. § 3582. We will

affirm the District Court’s orders.

   I. Background

       Because we write solely for the benefit of the parties, we include only the essential

facts. Defendants were indicted together on February 5, 2003 for conspiracy to distribute

more than 50 grams of cocaine base and more than 1,000 grams of heroin within 1,000

feet of a school in violation of 21 U.S.C. §§ 846 and 860. In addition, Jose and Santos

Mendez were charged with using a firearm during and in relation to a drug trafficking

offense, in violation of 18 U.S.C. § 924(c)(1) and possession of a firearm as a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). Jose Mendez was charged with another

§ 924(c) offense. Santos Mendez was also indicted separately, with others who are not

parties to this appeal, for Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, a

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§ 924(c) offense, and possessing a firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). Jose Mendez pleaded guilty to all four drug distribution counts; Louis

Cordero pleaded guilty to the conspiracy count; and Santos Mendez pleaded guilty to all

of the offenses in the robbery case and thereafter pleaded guilty to the three offenses he

was charged with in the drug distribution case.

       Santos Mendez was sentenced to life imprisonment for the drug conspiracy,

followed by a mandatory consecutive sentence of 7 years for a § 924(c) violation as

charged in the robbery indictment, and a mandatory consecutive sentence of 25 years for

the § 924(c) offense charged in the drug indictment.

       Jose Mendez was sentenced to 168 months’ imprisonment, which included 120

months for the drug conspiracy, and 24 months for each of the § 924(c) counts. The

Court directed that all the sentences run consecutively. Louis Cordero was sentenced to

144 months’ imprisonment. Both Jose Mendez’s and Louis Cordero’s sentences were

reduced as a result of § 5K1.1 motions filed by the government based on the defendants’

substantial assistance in the investigation and prosecution of others.

       In November, 2007, two years after defendants were sentenced, the Sentencing

Commission issued Amendment 706, which reduced the base offense level for crack

cocaine offenses under § 2D1.1(c) by two levels. See U.S.S.G. App. C, Amend. 706

(Nov. 1, 2007). On March 3, 2008, the Commission made the amendment retroactively

applicable. See U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008). Amendment 715

effectuates the two-level reduction intended by Amendment 706 for offenses involving



                                             3
both crack cocaine and another controlled substance. See U.S.S.G. App. C Supp., Amend

715 (May 1, 2008). We will refer to Amendments 706 and 715 as “the Amendments.”

       In February, 2009, all three defendants filed § 3582 motions for reduction of their

sentences under the Amendments. The District Court denied their motions. All three

defendants filed timely appeals of the District Court’s decisions; their appeals have since

been consolidated at their request.

   II. Analysis

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s decision to deny defendants’ motion to reduce their sentences

pursuant to § 3582(c)(2) for abuse of discretion. United States v. Mateo, 560 F.3d 152,

155 (3d Cir. 2009).

       A District Court may reduce a defendant’s sentence under § 3582 “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 . . . . after

considering the factors set forth in section 3553(a) to the extent that they are applicable, if

such a reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). However, district courts’ § 3582 authority to

reduce sentences based on amended guideline ranges is limited by § 1B1.10, which

provides, in relevant part, that a reduction is not authorized under 18 U.S.C. § 3582(c)(2)

if the “amendment listed in subsection (c) does not have the effect of lowering the

defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). Commentary on

the revision elaborates: “The amendment does not have the effect of lowering the

                                              4
defendant’s applicable guideline range because of the operation of another guideline or

statutory provision (e.g., a statutory mandatory minimum term of imprisonment).” Id.,

app. note 1(A).

       In their § 3582 motions, defendants argued that the Sentencing Commission’s

enactment of the Amendments lowered the sentencing ranges applicable to their offenses.

We agree with the District Court that the Amendments to U.S.S.G. §2D1.1 do not apply

here to lower the base offense level for defendants’ offenses. In denying Jose Mendez

and Louis Cordero’s requests for reduction, the District Court found that the

Amendments did not lower the applicable guideline ranges because the ranges were

based on mandatory minimum sentences higher than the §2D1.1 guideline ranges. Thus,

the sentences fell outside the ambit of § 3582(c)(2)’s grant of permission to modify

imprisonment terms based on lowered sentencing ranges. In denying Santos Mendez’s

motion, the District Court found that his base offense level would not have been affected

by the Amendments because of the large quantity of crack cocaine he possessed. 1

       On appeal, Jose Mendez and Louis Cordero claim that the District Court abused its

discretion because its interpretation of the Sentencing Guidelines violated the language

and purpose of the statute, failed to satisfy the goals of sentencing, strained the plain

meaning of the statute, and violated the rule of lenity. Santos Mendez reiterates these



   1
    The District Court found that due to the large quantity of crack he was found in
possession of, defendant would have been assigned a base offense level of 38 even if he
had been sentenced directly pursuant to § 2D1.1. Therefore, he was not entitled to a
reduction in his sentence under § 3582(c)(2). See United States v. Mateo, 560 F.3d 152,
155 (3d Cir. 2009).
                                              5
claims and further asserts that his sentence should be reduced based on considerations of

“fundamental fairness.”

       The District Court did not abuse its discretion. Jose Mendez and Louis Cordero

claim that they are entitled to a reduced sentence because § 3582(c) requires only that a

sentence be “based on” a lowered § 2D1.1 range and their sentences were, at least in part,

based on a reduced range. They also argue that the Commission’s policy statements are

merely “advisory” and that the District Court erred in treating them as binding. We

rejected these precise arguments in United States v. Doe, 564 F.3d 305 (3d Cir. 2009),

where we found that the Commission’s policy statements are indeed binding and “require

that the amendment must actually have had the effect of lowering the Guideline range.”

Id. at 310-11. Accordingly, we held that the Amendments did not lower the guideline

range applicable to defendant Doe’s offense, because the range was set by a mandatory

minimum and not by § 2D1.1. Id. at 315. The District Court correctly denied Cordero

and Jose Mendez’s claims.

       We also agree with the District Court’s conclusion that Santos Mendez’s

guideline range was not subject to the Amendments’ reduction because of the large

quantity of cocaine Mendez possessed. Santos Mendez’s “fundamental fairness” and

policy arguments do not overcome the Sentencing Guidelines’ unambiguous limitation –

that a sentence may be reduced only when it was based on a range lowered by a guideline

amendment.

       For the foregoing reasons, we will affirm the District Court’s judgments as to all

of the defendants.

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