                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2688
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                MICHAEL RINALDI,
                                                Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                     (D.C. Criminal Action No. 3-98-cr-00294-002)
                       District Judge: Honorable Edwin M. Kosik
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 19, 2015

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

                            (Opinion filed: December 1, 2015)
                                      ___________

                                        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.

                                             1
       Pro se appellant Michael Rinaldi appeals the District Court’s order denying his

motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). We have

jurisdiction under 28 U.S.C. § 1291, and our review is plenary. United States v. Savani,

733 F.3d 56, 60 (3d Cir. 2013). For the reasons detailed below, we will affirm.

       In June 1999, a jury in the Middle District of Pennsylvania found Rinaldi guilty of

conspiracy to distribute and possess with the intent to distribute cocaine in violation of 21

U.S.C. § 846, distribution and possession with intent to distribute cocaine in violation of

21 U.S.C. § 841(a)(1), using a firearm during and in relation to a drug-trafficking offense

in violation of 18 U.S.C. § 924(c), and possession of firearms by a convicted felon in

violation of 18 U.S.C. § 922(g)(1). After reviewing the Presentence Investigation Report

(PSR) and two addenda, the District Court determined that Rinaldi qualified as a career

offender under § 4B1.1 of the United States Sentencing Guidelines. Based on that

designation, Rinaldi’s Guidelines range was 360 months to life imprisonment. However,

the District Court concluded that Rinaldi’s career-offender status significantly over-

represented his criminal history. The Court therefore departed downward, and sentenced

Rinaldi to an aggregate term of 248 months’ imprisonment. This sentence is within the

Guidelines range that would have applied if Rinaldi were not a career offender. On direct

appeal, we affirmed. United States v. Rinaldi, 248 F.3d 1131 (3d Cir. 2000) (unpublished

table decision).

       Rinaldi has since challenged his conviction and sentence in a variety of ways. As

relevant here, Rinaldi filed a motion under § 3582(c)(2) based on Amendment 782 to the
                                              2
Guidelines, which reduced the offense levels assigned to most drug quantities under

U.S.S.G. § 2D1.1(c) by two levels. The District Court denied Rinaldi’s motion. Rinaldi

then filed a timely notice of appeal.1

       We agree with the District Court’s decision to deny Rinaldi’s motion. A district

court generally cannot “modify a term of imprisonment once it has been imposed” unless

a defendant is eligible for a reduction pursuant to § 3582(c). Section 3582(c)(2) 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 by the Sentencing Commission.” U.S.C. § 3582(c)(2);

United States v. Flemming, 723 F.3d 407, 410 (3d Cir. 2013).

       Here, a reduction in Rinaldi’s sentence would not be “consistent with applicable

policy statements issued by the Sentencing Commission.” A reduction in a sentence is

not consistent with the relevant policy statement unless the amendment has “the effect of

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

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.” U.S.S.G. § 1B1.10 cmt. n.1(A) (emphasis added); see also U.S.S.G. § 1B1.10

cmt. n.6. As we have held in similar cases, this means that Rinaldi’s applicable guideline

1
  The District Court permissibly granted Rinaldi’s motion for an extension of time to file
an appeal under Rule 4(b)(4) of the Federal Rules of Appellate Procedure, and Rinaldi
filed within the time prescribed by the District Court.
                                              3
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.” Flemming, 723 F.3d

at 412; see also United States v. Ware, 694 F.3d 527, 534 (3d Cir. 2012).2 Accordingly,

Amendment 782 — which alters the offense levels for drug crimes but does not affect the

offense levels for career offenders — would not lower Rinaldi’s applicable guidelines

range, and it would thus be contrary to the applicable policy statement to reduce Rinaldi’s

sentence.

       We will therefore affirm the District Court’s judgment.




2
  Contrary to Rinaldi’s contentions, the Second Addendum to the PSR, the sentencing
hearing, and the District Court’s statement of reasons in support of its sentence all make
clear that the District Court determined that Rinaldi was a career offender but then
departed downward because the Court believed that the career-offender designation over-
represented Rinaldi’s criminal history. Accordingly, we agree with the Government that
Rinaldi’s “applicable guideline range” is the range calculated under the career-offender
provisions.
                                              4
