BLD-253                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 16-1166
                                       ___________

                             UNITED STATES OFAMERICA

                                             v.

                            FERNANDO PENA, a/k/a Majestic

                                    Fernando Pena,
                                      Appellant
                        ____________________________________

                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                          (E.D. Pa. Crim. No. 03-cr-00487-009)
                        District Judge: Honorable John R. Padova
                       ____________________________________

    Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P.
                           10.6 and Possible Dismissal as Untimely
                                        May 12, 2016
                Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges

                               (Opinion filed: May 20, 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.
       Fernando Pena, proceeding pro se, appeals an order of the United States District

Court for the Eastern District of Pennsylvania denying his motion to reduce his sentence

pursuant to 18 U.S.C. § 3582(c)(2). For the reasons that follow, we will summarily

affirm the judgment of the District Court.1

       In 2004, Pena was convicted after a jury trial of conspiracy to distribute in excess

of fifty grams of cocaine base. At sentencing, the District Court found that the

Government had established that Pena was responsible for distributing 1.5 kilograms of

crack cocaine, that he had a leadership role in the offense, and that he possessed a firearm

in connection with the offense. These findings resulted in a base offense level of 38

based on the drug quantity and a total offense level of 42. With a criminal history

category of VI, Pena’s advisory guideline sentencing range was determined to be 360

months to life in prison. Taking into account the sentencing factors under 18 U.S.C.

§ 3553(a), the District Court sentenced Pena to 260 months in prison. We affirmed the

judgment on direct appeal. United States v. Keyes, 214 F. App’x 145, 157 (3d Cir. 2007)

(non-precedential).

       In 2007, Pena filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. The

District Court denied relief and we denied Pena’s request for a certificate of appealability.

Thereafter, the District Court denied two motions filed by Pena to reduce his sentence




1
 Pena was notified that his appeal was subject to possible dismissal because it appeared to
be untimely. We have determined that we may reach the merits of his appeal.
                                            2
pursuant to 18 U.S.C. § 3582(c)(2) based on amendments to the Sentencing Guidelines

that lowered the base offense levels applicable to crack cocaine offenses. The District

Court found that application of the amendments did not lower Pena’s sentencing range

and he was thus ineligible for a sentence reduction. We affirmed the denial of both

motions.

       In 2015, Pena filed another motion to reduce his sentence based on Amendment

782 to the Guidelines, which lowered the base offense levels for crack cocaine as well as

other drug offenses. The District Court found that Amendment 782 lowers Pena’s

sentencing range, but ruled that he is still ineligible for a sentence reduction because the

Guidelines preclude reducing his sentence below the bottom of the amended guideline

range, in this case 324 months. This appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We

review de novo the District Court’s interpretation of the Sentencing Guidelines. United

States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). We review the District Court’s ruling

on a motion to reduce a sentence under § 3582(c)(2) for abuse of discretion. Id.

       Under § 3582(c)(2), a court may reduce a sentence if the defendant “has been

sentenced to a term of imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission. . . .” 18 U.S.C. § 3582(c)(2). Any such

reduction must be consistent with applicable policy statements issued by the Sentencing

Commission. Id. The relevant policy statement here provides that a court shall not

reduce a defendant’s sentence under § 3582(c)(2) to a term that is less than the minimum
                                              3
of the amended guideline range, except if the original sentence imposed was below the

guideline range as a result of a motion to reflect a defendant’s substantial assistance to

authorities. U.S.S.G. § 1B1.10(b)(2)(A),(B).

       As noted above, Amendment 782 lowered the base offense levels for drug

offenses. Based on the finding that Pena was responsible for distributing 1.5 kilograms

of cocaine base, his base offense level under Amendment 782 is 32. See U.S.S.G.

§ 2D1.1(c)(4). With a total offense level of 36 and a criminal history category of VI,

Pena’s amended sentencing range is 324 to 405 months in prison. U.S.S.G. Sentencing

Table, Ch. 5, Pt. A. We agree with the District Court that under the policy statement

Pena’s sentence may not be reduced below 324 months in prison. Pena’s original

sentence was not below the guideline range as a result of a motion to reflect his

substantial assistance. See United States v. Berberena, 694 F.3d 514, 518-19 (3d Cir.

2012) (noting that this is the only situation when a reduction below the bottom of a

prisoner’s amended range is allowed).

       Accordingly, because this appeal does not raise a substantial question, we will

summarily affirm the judgment of the District Court.




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