CLD-437                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 13-3499
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                               KELIN MANIGAULT,
                                           Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (M.D. Pa. Crim. No. 1-05-cr-00187-001)
                      District Judge: Honorable Sylvia H. Rambo
                      ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                 September 26, 2013
             Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                            (Opinion filed: October 16, 2013)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Kelin Manigault, a federal prisoner proceeding pro se, appeals an order of the

United States District Court for the Middle District of Pennsylvania denying his motion

pursuant to 18 U.S.C. § 3582(c) to reduce his sentence. For the reasons that follow, we

will affirm the judgment of the District Court.
       Manigault pleaded guilty in 2005 to two counts of possession with intent to

distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). He

was sentenced to 235 months in prison. We affirmed the judgment on direct appeal.

United States v. Manigault, 228 F. App’x 183 (3d Cir. 2007) (unpublished decision).

       In 2008, Manigault filed a motion pursuant to 18 U.S.C. § 3582(c) to reduce his

sentence based on Amendment 706 to the Sentencing Guidelines, which lowered the base

offense levels for crack cocaine offenses. The District Court granted the motion and

Manigault’s sentence was reduced to 188 months in prison. Manigualt also filed in 2008,

but without success, a motion to vacate his sentence pursuant to 28 U.S.C. § 2255.

       In 2011, Manigault filed another motion pursuant to 18 U.S.C. § 3582(c) to reduce

his sentence based on Amendment 750 to the Sentencing Guidelines, which also lowered

the base offense levels for crack cocaine offenses. The Assistant Federal Public Defender

appointed to represent Manigault moved to withdraw as counsel, asserting that

Amendment 750 did not affect his sentence because he was sentenced as a career

offender. The District Court granted counsel’s motion to withdraw and denied

Manigault’s motion. This appeal followed.

       A district court may reduce a sentence “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 . . ., if such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2). The applicable policy statement instructs that a reduction is not consistent

with the policy statement and is not authorized if an amendment “does not have the effect

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of lowering the defendant’s applicable guideline range.” United States v. Mateo, 560

F.3d 152, 154 (3d Cir. 2009) (quoting U.S.S.G. § 1B1.10(a)(2)(B)). Thus, a defendant’s

sentencing range must have been lowered by recalculation based on the amended base

offense level. Id. (emphasis in original).

       The record reflects that Manigault’s base offense level under U.S.S.G. § 2D1.1

was 32 based on a drug quantity of 73 grams of cocaine base. Two points were added for

possession of a firearm, two points were added for obstruction of justice, and three points

were subtracted for acceptable of responsibility. Manigault’s total offense level was 33

and his criminal history category was VI. Manigault was found to be a career offender,

but because his offense level under the career offender guideline, U.S.S.G. § 4B1.1, was

determined to be 31, and lower than the otherwise applicable offense level of 33, the

offense level of 33 applied. See U.S.S.G. § 4B1.1(b). The applicable sentencing range

was 235 to 293 months in prison.

       When Manigault moved for a sentence reduction in 2008, the Probation Office

recalculated his sentence under Amendment 706 and determined that the drug quantity

involved resulted in a base offense level of 30. After adding and deducting the points

noted above, the total offense level was 31, the same offense level that applied under the

career offender guideline. The applicable sentencing range for an offense level of 31 and

a Criminal History Category of VI was 188 to 235 months, lower than Manigault’s




                                             3
original sentencing range, and the District Court reduced his sentence to 188 months in

prison.1

       Manigault argues that he is entitled to another sentence reduction under

Amendment 750, which was effective November 1, 2011 and also reduced the base

offense levels for crack cocaine offenses. He contends that the drug quantity involved in

his case now results in a base offense level of 26. After adding and deducting his other

points, Manigault states that his total offense level is 27 and that his guideline range is

lowered to 130 to 162 months based on his Criminal History Category of VI.

       Manigault fails to fully account for his status as a career offender. To determine

whether a reduction is warranted, we must consider what the sentencing range would

have been had Amendment 750 been in place at the original sentencing. See United

States v. McBride, 283 F.3d 612, 615 (3d Cir. 2002) (“a retroactive amendment merely

replaces the provision it amended and, thereafter, the Guidelines in effect at the time of

original sentence are applied”). When Amendment 750 is applied here, Manigault’s

amended base offense level under § 2D1.1 is 26. However, because he is a career

offender, the offense level in § 4B1.1 applies if that offense level is higher than the

calculated offense level. Mateo, 560 F.3d at 153. Although Manigault’s offense level of

31 under § 4B1.1 was originally lower than the otherwise applicable offense level, had

Amendment 750 been in effect, that offense level would have been higher than the


1
 In Mateo, we held that Amendment 706 did not affect a career offender’s sentencing
range, but there the original sentencing range was determined by the offense level in
§ 4B1.1 and that offense level remained unchanged. Mateo, 560 F.3d at 154-55.

                                              4
calculated offense level. Thus, an offense level of 31 applies and results in a sentencing

range of 188 to 135 months. This is the same sentencing range that the District Court

used in reducing Manigault’s sentence in 2008. Because Manigault’s sentencing range is

not further lowered by Amendment 750, the District Court did not err in denying his

§ 3582 motion. Cf. United States v. Ware, 694 F.3d 527, 532 (3d Cir. 2012)

(Amendment 750 did not affect the guideline range where defendants were career

offenders).2

       Accordingly, we will affirm the judgment of the District Court.




2
 To the extent Manigault argues that he is entitled to a reduction of sentence under
Freeman v. United States, 131 S. Ct. 2685 (2011), Freeman considered whether a
sentence imposed pursuant to a plea agreement can be “based on” a sentencing range for
purposes of § 3582(c). Freeman does not change the above analysis used to determine
whether a sentencing range is lowered by a retroactive amendment.
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