                                                                NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             ______________

                                   No. 09-2333

                                 ______________


                        UNITED STATES OF AMERICA

                                         v.

                              SHAWN SYLVESTER,

                                                    Appellant
                                 ______________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                       (D.C. Crim. Action No. 02-0250)
                District Judge: Honorable Thomas I. Vanaskie
                               ______________

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

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

                         (Opinion Filed: August 20, 2010)
                                ______________

                                     OPINION

GREENAWAY, JR., Circuit Judge

     Appellant Shawn Sylvester (“Sylvester”) appeals from an order of the United

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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). For the reasons set forth

below, we will affirm.

                                  I.   BACKGROUND

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

       On April 1, 2003, Sylvester entered a guilty plea, pursuant to a binding plea

agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure.

Specifically, Sylvester pled guilty to Count II of a three-count Indictment, charging him

with distributing and possessing with intent to distribute 1.5 kilograms or more of crack

cocaine. The plea agreement stipulated a prison term of 240 months.

       The Probation Office prepared a Presentence Investigation Report (“PSR”) that

calculated a United States Sentencing Guidelines (“Guidelines”) range of 292 to 365

months. The PSR also noted that the binding plea agreement’s stipulated sentence was

the maximum statutory term of 240 months. Sylvester lodged no objections to the

calculation of his sentence, as it appeared in the PSR.

       In July 2003, the District Court adopted the factual findings and the Guidelines

calculations of the PSR, and, consistent with the plea agreement, sentenced Sylvester to a

prison term of 240 months.

       In 2007, the Guidelines were amended to decrease the offense levels for crack




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cocaine offenses.1 In response to the amendments, on November 10, 2008, Sylvester filed

a motion for sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2)

provides in relevant part: “[i]n 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 ... the court may reduce the term of imprisonment ....”

       The District Court denied Sylvester’s motion on April 20, 2009, finding Sylvester

was ineligible for relief because he had entered into a binding plea agreement. The

District Court relied on United States v. Sanchez, 562 F.3d 275 (3d Cir. 2009), to support

its conclusion.

       Sylvester filed a timely notice of appeal.

                                   II.   JURISDICTION

       The District Court had jurisdiction, pursuant to 18 U.S.C. § 3231. We exercise

jurisdiction, pursuant to 28 U.S.C. § 1291.

                            III.   STANDARD OF REVIEW

       In general, our review of a district court’s order denying a defendant’s motion for

sentence reduction is for abuse of discretion. United States v. Mateo, 560 F.3d 152, 154

(3d Cir. 2009). Where-as is the case here-a district court rules that it lacks the authority to

order a reduction, however, our review of the legal question is de novo. United States v.

Sanchez, 562 F.3d at 279-88.



  1
       Amendment 706 of the U.S. Sentencing Guidelines, § 2D1.1 (2007).

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                                       IV.    ANALYSIS

         Sylvester contends, solely for purposes of issue preservation 2 , that the District

Court erred by denying his motion for a reduction of sentence, pursuant to 18 U.S.C. §

3582(c)(2). He asserts that this Court should adopt the reasoning of United States v.

Dews, 551 F.3d 204 (4th Cir. 2008), in which the United States Court of Appeals for the

Fourth Circuit permitted a district court to consider a Section 3582 sentence reduction

motion despite the existence of a Rule 11(c)(1)(C) binding plea agreement. Appellant’s

Br. 9.

         This Court’s decision in United States v. Sanchez, forecloses Sylvester’s request

for relief.3 Section 3582(c)(2) relief is not available for a defendant who has been

sentenced, pursuant to a Rule 11(c)(1)(C) binding plea agreement. Sanchez, 562 F.3d at

282 n.7. Here, Sylvester stipulated to the sentence imposed in a binding plea agreement

under Fed. R. Crim. P. 11(c)(1)(C), the validity of which is undisputed.




  2
         Sylvester concedes, as he must, that,

         [this] Court has rejected [his] argument holding that § 3582(c)(2) sentence
         reduction motions are not available where the defendant entered into a Rule
         11 binding plea agreement. United States v. Sanchez, 562 F.3d 275 (3d Cir.
         2009). Nevertheless, for the purposes of preserving this issue for future
         proceedings, if any, Sylvester sets forth his argument below.

Appellant’s Br. 8.
  3
       Notably, Sanchez was decided after Dews, and explicitly rejected the majority
position in that decision in favor of the dissent. 562 F.3d at 282 n.7.

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                                 V.    CONCLUSION

      Based on the foregoing, we will AFFIRM the order of the District Court denying

Sylvester’s motion for sentence reduction.




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