                                     PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
          __________________________

                   No. 15-3086
           __________________________

          UNITED STATES OF AMERICA

                          v.

             FRANKLIN THOMPSON,
             a/k/a Rock, a/k/a Hard Rock

                  Franklin Thompson,
                                  Appellant
           __________________________

 APPEAL FROM THE UNITED STATES DISTRICT
                       COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
    (D.C. Criminal Action No. 2-07-cr-00303-002)
     District Judge: Honorable Joy Flowers Conti
           __________________________

     Submitted Under Third Circuit L.A.R. 34.1(a)
                  March 21, 2016
           __________________________

                   No. 15-3107
           __________________________

          UNITED STATES OF AMERICA

                          v.

               LAMAR M. GIBSON,
                               Appellant
           __________________________

 APPEAL FROM THE UNITED STATES DISTRICT
                       COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
    (D.C. Criminal Action No. 2-06-cr-00243-001)
     District Judge: Honorable Joy Flowers Conti
           __________________________

     Submitted Under Third Circuit L.A.R. 34.1(a)
                  March 21, 2016
           __________________________

Before: GREENAWAY, JR., VANASKIE and SHWARTZ,
                Circuit Judges.

            (Opinion Filed: June 7, 2016)




                          2
Lisa B. Freeland, Esq.
Candace Cain, Esq.
Office of the Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222

      Attorneys for Appellants

David J. Hickton, Esq.
Rebecca R. Haywood, Esq.
Laura S. Irwin, Esq.
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

      Attorneys for Appellee



                    ________________

                        OPINION
                    ________________

GREENAWAY, JR., Circuit Judge.

      Appellants Franklin Thompson and Lamar Gibson
appeal the District Court’s denial of their 18 U.S.C.




                               3
§ 3582(c)(2) motions for sentence reduction.1            Section
3582(c)(2) permits a district court to exercise its discretion to
reduce a sentence only if: (1) the sentence is “based on” a
Guidelines range that has subsequently been lowered; and (2)
a sentence reduction would be consistent with the Sentencing
Commission’s policy statements. 18 U.S.C. § 3582(c)(2).

       The Sentencing Commission’s policy statement
applicable here prohibits a district court from reducing a
defendant’s sentence unless a subsequent amendment to the
Guidelines lowers the defendant’s “applicable guideline
range.” U.S.S.G. § 1B1.10(a)(2)(B). In 2011, the Sentencing
Commission promulgated Amendment 759, which amended
the Application Notes to § 1B1.10 to make clear that a
defendant’s “applicable guideline range” is to be determined
before any departures and variances. See U.S.S.G. app. C,
amend. 759 (Nov. 1, 2011); U.S.S.G. § 1B1.10 cmt. n.1(A).

        Appellants argue that they satisfy the first prong of
§ 3582(c)(2) because their sentences were “based on”
Guidelines ranges calculated using the subsequently-lowered
base offense levels in the drug quantity table in Guidelines
§ 2D1.1. Even if they are correct, Amendment 759 forecloses
relief for Appellants, under the second prong of § 3582(c)(2),
because     their    pre-departure/pre-variance    “applicable
guideline ranges” were calculated using the base offense
levels for career offenders in Guidelines § 4B1.1, which have
not been lowered. Appellants argue that, since Amendment


       1
        Although each Appellant has filed a separate appeal,
we believe both appeals present similar issues of fact and law.
We have consolidated the cases for purpose of appeal.




                               4
     759 came into effect after they committed their crimes,
     Amendment 759 is an invalid ex post facto law.

            We now hold that, although Appellants’ sentences
     were “based on” Guidelines ranges calculated under § 2D1.1,
     Amendment 759 is not an ex post facto law and operates to
     bar a sentence reduction for Appellants. We will therefore
     affirm the District Court’s judgment in both cases denying
     Appellants’ motions for sentence reduction.

I.         BACKGROUND

            Appellants were both indicted in the United States
     District Court for the Western District of Pennsylvania for
     drug offenses. Gibson pled guilty in 2008 and Thompson
     pled guilty in 2011.2

     A.    Gibson’s Sentencing

            At Gibson’s sentencing hearing, the District Court
     concluded that Gibson was a “career offender” within the
     meaning of § 4B1.1 and determined that the base offense
     levels for career offenders in § 4B1.1 (the “Career Offender
     Guidelines”) applied. The District Court calculated Gibson’s
     Career Offender Guidelines range to be 262 to 327 months of
     imprisonment.3

           2
              Thompson also pled guilty to a money laundering
     offense, 18 U.S.C. § 1956(h), as part of the same indictment.
           3
              Gibson’s Career Offender Guidelines range was
     calculated using a criminal history category of VI, as
     provided for in the career offender provisions of § 4B1.1. His
     Career Offender Guidelines range also took into account a




                                   5
        However, the Government explained at the hearing
that it did not oppose a downward departure from the Career
Offender Guidelines range because Gibson had agreed to be
sentenced at “the high end of the otherwise applicable
guideline range” (i.e., the Guidelines range calculated using
the base offense levels from the drug quantity table in
§ 2D1.1 (the “Drug Guidelines”)). Gibson App. 101. The
District Court calculated Gibson’s Drug Guidelines range to
be 130 to 162 months of imprisonment.4

       Pursuant to the parties’ request, the District Court
departed downwards from the Career Offender Guidelines
range and sentenced Gibson to 162 months of
imprisonment—the top end of his Drug Guidelines range.

B.    Thompson’s Sentencing


two-level reduction to the pertinent base offense level in the
Career Offender Guidelines for his acceptance of
responsibility and a one-level reduction for his timely
notification of his intention to plead guilty.


      4
         Gibson’s Drug Guidelines range was also calculated
using a criminal history category of VI. Gibson had a
criminal history category of VI both before and after the
criminal history category enhancement provided for in the
career offender provisions of § 4B1.1. His Drug Guidelines
range also took into account the base offense level reductions
described in supra note 3.




                              6
       At Thompson’s sentencing hearing, the District Court
similarly concluded that Thompson was a “career offender”
within the meaning of § 4B1.1 and determined that the Career
Offender Guidelines applied. The District Court calculated
Thompson’s Career Offender Guidelines range to be 262 to
327 months of imprisonment.5

       However, the parties requested at the hearing that the
District Court sentence Thompson pursuant to a Rule
11(c)(1)(B) plea agreement.        See Fed. R. Crim. P.
11(c)(1)(B). In Thompson’s plea agreement, “[t]he parties
agree[d] that a . . . variance from the otherwise applicable
Career Offender [Guidelines] . . . [was] warranted.”6
Thompson App. 227. Accordingly, the plea agreement
calculated the agreed upon Guidelines range of 135 to 168
months of imprisonment using the pertinent base offense



       5
         Thompson’s Career Offender Guidelines range was
calculated using a criminal history category of VI, as
provided for in the career offender provisions of § 4B1.1. His
Career Offender Guidelines range also took into account a
three-level reduction to the pertinent base offense level in the
Career Offender Guidelines for his acceptance of
responsibility.
       6
         The plea agreement refers to both a departure and
variance, but the parties’ statements during Thompson’s
sentencing make clear that they were requesting a variance
and the District Court’s Statement of Reasons makes clear
that it determined Thompson’s sentence based only on a
variance.




                               7
level from the Drug Guidelines.7 The parties agreed in the
plea agreement that the “appropriate term of imprisonment”
was 151 months—the midpoint of Thompson’s Drug
Guidelines range. Thompson App. 228.

       Pursuant to the parties’ request, the District Court
varied downwards from the Career Offender Guidelines range
and imposed a sentence of 151 months of imprisonment. The
District Court’s Statement of Reasons makes clear that the
sentence was imposed pursuant to the parties’ plea agreement.

C.    Guidelines Amendments

        In 2011, after Appellants were sentenced, the
Sentencing Commission promulgated Amendment 759 to the
Guidelines, which included an amendment to the Application
Notes to the policy statement in § 1B1.10. See U.S.S.G. app.
C, amend. 759 (Nov. 1, 2011). Section 1B1.10 provides that
a district court is not authorized to reduce a sentence under
§ 3582(c)(2) unless an amendment to the Guidelines has the
“effect of lowering the defendant’s applicable guideline
range.” U.S.S.G. § 1B1.10(a)(2)(B) (emphasis added).


      7
         Thompson’s Drug Guidelines range was calculated
using a criminal history category of III, which was
Thompson’s pertinent criminal history category without the
criminal history category enhancement provided for in the
career offender provisions of § 4B1.1. His Drug Guidelines
range also took into account a two-level enhancement to the
pertinent base offense level in the Drug Guidelines for his
plea of guilty to the money laundering offense and a three-
level reduction for his acceptance of responsibility.




                             8
       To resolve a split among the Courts of Appeals as to
whether a defendant’s “applicable guideline range” should be
determined before or after any departures and variances, the
amendment to the Application Notes defined the phrase
“applicable guideline range” in § 1B1.10 to be “the guideline
range that corresponds to the offense level and criminal
history category determined . . . before consideration of any
departure provision in the Guidelines Manual or any
variance.” U.S.S.G. app. C, amend. 759 (Nov. 1, 2011)
(emphasis added); U.S.S.G. § 1B1.10 cmt. n.1(A) (emphasis
added); see United States v. Pleasant, 704 F.3d 808, 812 (9th
Cir. 2013). The amended Application Notes thus preclude a
defendant from obtaining a § 3582(c)(2) sentence reduction if
he has been designated a “career offender” but was actually
sentenced within a subsequently-lowered non-career offender
Guidelines range based on a departure or variance. See
United States v. Flemming (Flemming III), 723 F.3d 407,
411−13 (3d Cir. 2013).

       Several years later, in 2014, the Sentencing
Commission promulgated Amendment 782 to the Guidelines,
which retroactively reduced by two levels the base offense
levels assigned to many drug quantities in the Drug
Guidelines, including the drug quantities associated with
Appellants’ offenses. See U.S.S.G. app. C, amend. 782
(Supp. Nov. 1, 2014); U.S.S.G. app. C, amend. 788 (Supp.
Nov. 1, 2014).       Believing that their sentences were
determined by the Drug Guidelines, Appellants filed
§ 3582(c)(2) motions for sentence reduction pursuant to the
amendment lowering the Drug Guidelines.

       Consistent with the Sentencing Commission’s policy
statement, the District Court concluded that Appellants’ pre-
departure (Gibson), pre-variance (Thompson) “applicable




                             9
       guideline ranges” were their Career Offender Guidelines
       ranges, which had not been affected by Amendment 782.
       Accordingly, the District Court denied Appellants’ motions
       for sentence reduction. These appeals followed.



 II.         JURISDICTION AND STANDARD OF REVIEW

              The District Court had jurisdiction pursuant to 18
       U.S.C. § 3231. We have appellate jurisdiction pursuant to 28
       U.S.C. § 1291. Our review over a district court’s decision to
       grant or deny a motion for sentence reduction is typically for
       abuse of discretion. United States v. Mateo, 560 F.3d 152,
       154 (3d Cir. 2009). However, in this case, we exercise
       plenary review because we are presented with “legal
       questions concerning the proper interpretation of the
       Sentencing Guidelines,” United States v. Edwards, 309 F.3d
       110, 112 (3d Cir. 2002), and an ex post facto challenge to the
       Guidelines, United States v. Audinot, 901 F.2d 1201, 1202
       (3d Cir. 1990).

III.         ANALYSIS

              A district court is authorized under § 3582(c)(2) to
       exercise its discretion to reduce a sentence only “where two
       requirements are satisfied.” United States v. Flemming
       (Flemming II), 617 F.3d 252, 257 (3d Cir. 2010). First, the
       sentence must have been “based on a sentencing range that
       has subsequently been lowered by the Sentencing
       Commission.” 18 U.S.C. § 3582(c)(2). Second, the sentence
       reduction must be “consistent with applicable policy
       statements issued by the Sentencing Commission.” Id. We
       address each requirement in turn and conclude that, although




                                    10
Appellants meet the first requirement, they cannot meet the
second.




                            11
A.    Were Appellants’ Sentences “Based On” Their Drug
Guidelines Ranges?

       Appellants argue that they meet the first requirement
under § 3582(c)(2) because their sentences were “based on”
Guidelines ranges calculated using the Drug Guidelines in
§ 2D1.1, which were subsequently lowered by Amendment
782. See U.S.S.G. app. C, amend. 782 (Supp. Nov. 1, 2014).
The Government responds by pointing us to the District
Court’s designation of both Appellants as “career offenders”
subject to the Career Offender Guidelines in § 4B1.1.

        Our decision in Flemming II is instructive. In
Flemming II, the district court designated the defendant a
“career offender,” and he was thus subject to the Career
Offender Guidelines. See 617 F.3d at 255. However, the
district court concluded that the career offender designation
“overstate[d] [the defendant’s] criminal history,” warranting a
downward departure. Id. at 255−56. Based on this
conclusion, the district court accepted the Government’s
recommended sentence, which was “at the top of the
Guidelines range” calculated using the Drug Guidelines. Id.
at 256.

       After examining the foregoing facts, we concluded that
the defendant’s sentence was, in fact, “based on” the
Guidelines range calculated using the Drug Guidelines. See
id. at 260. In so concluding, we observed that “[t]he
Government’s contention that [the defendant’s] sentence was
‘based on’ the sentencing range calculated under the Career
Offender Guidelines cannot be squared with the ordinary
meaning of that phrase” because the district court had




                              12
sentenced the defendant within the Guidelines range
calculated using the pertinent base offense level from the
Drug Guidelines.8 Id. at 259.

       Similarly, in Gibson’s case, although the District Court
designated him a “career offender” subject to the Career
Offender Guidelines, it determined that a downward
departure was warranted. Thus, as recommended by the
Government, the District Court sentenced Gibson to 162
months of imprisonment—the “high end of the otherwise
applicable” Guidelines range, Gibson App. 101, which was
calculated using the pertinent base offense level from the
Drug Guidelines. Gibson’s case therefore falls squarely


      8
          The Government argues that our decision in
Flemming III undermines our holding in Flemming II that the
defendant was sentenced “based on” his Drug Guidelines
range. Flemming III did no such thing. In making its
argument, the Government conflates the two distinct
requirements of § 3582(c)(2). See United States v. Ware, 694
F.3d 527, 533−34 (3d Cir. 2012); Flemming II, 617 F.3d at
260 n.11. Our decision in Flemming III only addressed the
second requirement of § 3582(c)(2)—whether a sentence
reduction for the defendant would have been “consistent with
applicable policy statements issued by the Sentencing
Commission.” See Flemming III, 723 F.3d at 410 (quoting 18
U.S.C. § 3582(c)(2)).       The Government conceded in
Flemming III that the first requirement—whether the
defendant’s sentence was “based on” his Drug Guidelines
range—had been met. See id. at 410 n.2.




                              13
within our decision in Flemming II. As such, we conclude
that his sentence was “based on” his Drug Guidelines range.

        Thompson’s case presents a permutation of the facts in
Flemming II, but the result is nonetheless the same. Although
the District Court designated Thompson a “career offender”
subject to the Career Offender Guidelines, as in Flemming II,
it did not sentence him within his Career Offender Guidelines
range. Rather, the District Court’s Statement of Reasons
makes clear that it imposed his sentence pursuant to the
parties’ plea agreement, which provided for a “variance from
the otherwise applicable Career Offender [Guidelines].”
Thompson App. 227. The plea agreement contained an
explicit calculation of Thompson’s Guidelines range using the
pertinent base offense level from the Drug Guidelines and
then recommended a sentence of 151 months of
imprisonment—the midpoint of Thompson’s Drug Guidelines
range.

       Thus, in sentencing Thompson to 151 months of
imprisonment, as in Flemming II, the District Court
“reverted” to the Drug Guidelines range and “imposed a
sentence within that range.” Flemming II, 617 F.3d at 259. If
Amendment 782 had been in effect when Thompson was
sentenced, we are convinced that the parties would have
incorporated the lower pertinent base offense level from the
Drug Guidelines into their plea agreement and the District
Court would have accordingly sentenced Thompson based on
the resultant lower Drug Guidelines range. See id. Under
these circumstances, we have no trouble concluding that
Thompson’s sentence of 151 months of imprisonment was
“based on” his Drug Guidelines range.




                             14
      Because the District Court’s sentences of Appellants
were “based on” their Drug Guidelines ranges, and those
ranges were subsequently lowered by Amendment 782,
Appellants have satisfied the first requirement of
§ 3582(c)(2).

B.    Would Sentence Reductions Be Consistent with the
Sentencing Commission’s Policy Statement in § 1B1.10?

       Appellants acknowledge that, after Amendment 759,
their “applicable guideline ranges” under the Sentencing
Commission’s policy statement in § 1B1.10 are their Career
Offender Guidelines ranges. Accordingly, they concede that
they cannot satisfy the second requirement of § 3582(c)(2)
because Amendment 782 only lowered their Drug Guidelines
ranges. See Flemming III, 723 F.3d at 411−13. However,
Appellants argue that Amendment 759 violates the Ex Post
Facto Clause of the Constitution, U.S. Const. art. I, § 9, cl. 3,
because it was enacted after they committed their crimes and
retroactively denies them the benefit of a sentence reduction
to which they otherwise would have been entitled. We
disagree.

        The Ex Post Facto Clause “bar[s] enactments which,
by retroactive operation, increase the punishment for a crime
after its commission.” Garner v. Jones, 529 U.S. 244, 249
(2000). Accordingly, in assessing whether a law violates the
Ex Post Facto Clause, we compare the punishment attached to
the defendant’s crime at the time of his offense with the
punishment retroactively attached to the defendant’s crime
after the enactment of the alleged ex post facto law. If the
retroactive “change in law presents a ‘sufficient risk of
increasing the measure of punishment attached to the covered
crimes,’” then it violates the Ex Post Facto Clause. Peugh v.




                               15
United States, 133 S. Ct. 2072, 2082 (2013) (quoting Garner,
529 U.S. at 250) (internal quotation marks omitted).

       In arguing that Amendment 759 satisfies this standard,
Appellants rely on the Supreme Court’s decision in Weaver v.
Graham, 450 U.S. 24 (1981). In Weaver, the defendant was
sentenced to prison for fifteen years in Florida for a murder.
Id. at 25. At the time of the defendant’s offense, a Florida
statute provided a formula for calculating good conduct
credits that operated to shorten the sentence of each
qualifying prisoner. Id. at 26. After the defendant was
sentenced, the Florida Legislature repealed the statute and
enacted a new formula that reduced the number of good
conduct credits available to each qualifying prisoner. Id. at
26−27.

        Florida contended that the new law did not violate the
Ex Post Facto Clause because the old formula was not part of
the defendant’s “punishment” and thus its replacement with
the less lenient formula did not retroactively increase the
punishment for the defendant’s crime. Id. at 31−32. In
rejecting that argument, the Supreme Court observed that the
“prospect of the gain time”9 was “one determinant of [the
defendant’s] prison term” and was “a significant factor
entering into both the defendant’s decision to plea bargain
and the judge’s calculation of the sentence to be imposed.”

      9
         “Gain time” was the phrase Florida used to describe
“various kinds of time credited to reduce a prisoner’s prison
term,” including good conduct credits. Weaver, 450 U.S. at
25 n.1.




                             16
Id. at 32. Accordingly, the defendant’s “effective sentence
[was] altered once [that] determinant [was] changed.” Id.

       Appellants’ reliance on Weaver is misplaced because it
ignores a critical distinction between their cases and
Weaver—the good conduct formula in Weaver was already in
existence at the time of the defendant’s offense. Because the
formula was already in existence when the defendant in
Weaver committed his crime, and operated to reduce his
sentence, its abrogation retroactively increased the “quantum
of punishment” attached to his crime. Id. at 33 (quoting
Dobbert v. Florida, 432 U.S. 282, 294 (1977)) (internal
quotation marks omitted).

       By contrast, the Drug Guidelines reduction in
Amendment 782 was not enacted until 2014, years after
Appellants’ offenses. See U.S.S.G. app. C, amend. 782
(Supp. Nov. 1, 2014). Since Amendment 782 was not in
effect at the time of Appellants’ offenses, unlike the good
conduct formula in Weaver, it was neither a “determinant” of
Appellants’ sentences nor a component of their “effective
sentence[s]” at that time and so we do not view it as
constituting part of their “punishment.” Weaver, 450 U.S. at
31−32. Therefore, the abrogation of Amendment 782 with
respect to Appellants through Amendment 759 did not
retroactively “increas[e] the measure of punishment attached
to [Appellants’] crimes.”10 Peugh, 133 S. Ct. at 2082

      10
          We also note that the Drug Guidelines reduction in
Amendment 782 was enacted several years after Amendment
759 and so the sentence reduction associated with
Amendment 782 was never applicable to Appellants. When
enacted, Amendment 759 operated to deny Appellants the
benefit of a sentence reduction that did not yet exist. And so,




                              17
(quoting Garner, 529 U.S. at 250) (internal quotation marks
omitted).

        Put another way, rendering Appellants ineligible for
the sentence reduction associated with Amendment 782 does
not lengthen the period of time they will spend incarcerated—
it merely denies them the benefit of a discretionary reduction
of that period of time. See Garner, 529 U.S. at 255
(observing that an ex post facto violation exists where
“retroactive application [of a new law] will result in a longer
period of incarceration than under the earlier rule” (emphasis
added)); Lynce v. Mathis, 519 U.S. 433, 442−43 (1997). As
the Supreme Court observed in Weaver, “[c]ritical to relief
under the Ex Post Facto Clause is not an individual’s right to
less punishment, but the lack of fair notice and governmental
restraint when the legislature increases punishment beyond
what was prescribed when the crime was consummated.”
Weaver, 450 U.S. at 30 (emphasis omitted).

       Accordingly, we conclude that Appellants’ ex post
facto argument is without merit. In so concluding, we join
the other Circuits that have considered similar ex post facto
challenges to § 1B1.10 of the Guidelines. See, e.g., United
States v. Waters, 771 F.3d 679 (9th Cir. 2014) (per curiam);
United States v. Diggs, 768 F.3d 643 (7th Cir. 2014); United
States v. Colon, 707 F.3d 1255 (11th Cir. 2013). Given that
Amendment 759 presents no ex post facto problem, the
Sentencing Commission’s policy statement in § 1B1.10
precludes Appellants’ requested sentence reductions and so

today, Amendment 759 merely operates to deny Appellants
the benefit of a sentence reduction to which they have never
been entitled.




                              18
      Appellants have not satisfied the second requirement of
      § 3582(c)(2).

IV.         CONCLUSION

            For the foregoing reasons, we will affirm the judgment
      of the District Court in both cases denying Appellants’
      motions for sentence reduction.




                                  19
