                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3826
                                       ___________

                            UNITED STATES OF AMERICA


                                             v.

                                  JAVON HARRIS,
                                           Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                     (D.C. Criminal Action No. 2-13-cr-00076-001)
                       District Judge: Honorable Anita B. Brody
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 23, 2016
          Before: CHAGARES, KRAUSE and GREENBERG, Circuit Judges

                              (Opinion filed: April 1, 2016)
                                     ___________

                                        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.
       Javon Harris, a federal prisoner proceeding pro se, appeals the District Court’s

order denying his motion requesting a sentence reduction pursuant to 18 U.S.C. §

3582(c)(2). For the reasons that follow, we will affirm.

                                                 I.

       Harris pleaded guilty to one count of distribution of cocaine, in violation of 21

U.S.C. § 841. He entered the plea pursuant to Fed. R. Crim. P. 11(c)(1)(C), and the

parties agreed to a binding sentence of 84 months. At Harris’s sentencing hearing, the

District Court recognized that Harris qualified as a career offender under the U.S.

Sentencing Guidelines. Under that designation, Harris’s sentencing range under the

Guidelines was 210 months to 262 months. After considering the arguments of the

parties and the sentencing factors under 18 U.S.C. § 3553(a), the District Court accepted

Harris’s argument that a variance from the above range was appropriate. The District

Court adjusted Harris’s sentencing range to one consistent with the agreement, and

imposed the agreed-upon sentence of 84 months.1

       In September 2015, Harris filed a motion under 18 U.S.C. § 3582(c)(2). He

sought to have his sentence reduced based on Amendment 782 to the U.S. Sentencing

Guidelines, which lowered by two the base offense assigned to particular drug quantities.

The District Court denied the motion because Harris’s plea agreement did not expressly

invoke a particular Guidelines range. Harris appealed. He argues the District Court erred

1
  The order under review mistakenly states that Harris received a sentence of 120 months
in prison.
                                            2
in finding his plea agreement was not tied to a range under the Guidelines. The

Government responds that Harris’s arguments “are premised on a misperception of the

record and the law.” The Government asks that we affirm the District Court’s order for

three reasons: (1) the sentence specified in Harris’s plea agreement was not expressly

based on a range under the Guidelines; (2) Harris’s sentencing range was set by the

career offender Guideline; and (3) the Guidelines manual used to calculate Harris’s

sentence already included the reductions made by Amendment 782.

                                            II.

       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

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).

                                            III.

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

imposed, but a defendant may be eligible for a reduction pursuant to 18 U.S.C. § 3582(c)

under certain circumstances. Section 3582(c) allows for a reduction 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




                                             3
by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); United States v. Flemming,

723 F.3d 407, 410 (3d Cir. 2013).

       Harris fails to meet either of § 3582(c)(2)’s criteria. As an initial matter, the

District Court correctly determined that Harris’s Rule 11(c)(1)(C) sentence was not

expressly based on a Guidelines sentencing range. See United States v. Freeman, 131 S.

Ct. 2685, 2698 (2011) (Sotomayor, J., concurring); United States v. Thompson, 682 F.3d

285, 289-90 (3d Cir. 2012). Moreover, Harris’s sentencing took place February 2, 2015,

and he was sentenced using the Guidelines manual in effect on November 1, 2014. That

manual reflected the changes promulgated by Amendment 782.

       Harris also fails to meet § 3582(c)(2)’s second criterion, as a reduction in his

sentence would not be “consistent with the applicable policy statements issued by the

Sentencing Commission.” The relevant “applicable policy statement[]” makes clear that

a reduction in a sentence following a retroactive Guidelines amendment is inconsistent

with the Commission’s policy statements unless the amendment has “the effect of

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

Thus, the “question here is whether amendments to the… guidelines… have the effect of

lowering the ‘applicable guideline range’ of a defendant subject to the career offender

designation,” who received a downward departure or variance. Flemming, 723 F.3d at

410.




                                              4
      The Sentencing Guidelines define “applicable guideline range” as “the guideline

range that corresponds to the offense level and criminal history category determined

pursuant to § 1B1.1(a), which is determined before consideration of any departure

provision in the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A). As

in Flemming, the “applicable guideline range” is “the range calculated pursuant to the

career offender designation of § 4B1.1, and not the range calculated after applying any

departure or variance.” 712 F.3d at 412. The fact Harris received a downward variance

from the career offender Guideline does not change the applicable range under which his

sentence was calculated. See id.

                                           IV.

      For the foregoing reasons, we will affirm the District Court’s order denying

Harris’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).




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