                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-1502
                                     _____________

                            UNITED STATES OF AMERICA

                                                 v.

                              ALPHONSO L. MACON, JR.,
                                                 Appellant
                                   _____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. No. 1-99-CR-00126-001)
                      District Judge: Honorable Sylvia H. Rambo
                                    _____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  on October 7, 2010

             Before: FUENTES, JORDAN and ALDISERT, Circuit Judges
                         (Opinion Filed: October 28, 2010)

                                     _____________

                               OPINION OF THE COURT
                                   _____________

ALDISERT, Circuit Judge.

       Alphonso L. Macon, Jr., appeals from the District Court’s Order denying his 18

U.S.C. § 3582(c)(2) motion for a sentence reduction. He presents two issues for our

consideration: first, whether the District Court erred in denying his motion for a sentence

reduction by determining his sentence was not based on a subsequently lowered


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sentencing range, and, second, whether the District Court abused its discretion by

concluding additionally that his post-sentencing conduct warranted denial of a sentence

reduction. We hold that although our recent decision in United States v. Flemming, 617

F.3d 252 (3d Cir. 2010), establishes Macon’s sentence was based on a subsequently

lowered sentencing range, the Court acted within its discretion in declining to reduce his

sentence. Accordingly, we will affirm the District Court.1

                                             I.

       Because we write only for the parties, who are familiar with the events that gave

rise to this appeal, we recount the facts and the District Court proceedings only as

necessary to explain our reasoning.

       On August 19, 1999, Macon pleaded guilty to a charge of distribution and

possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §

841(a)(1). At Macon’s re-sentencing hearing (an error was made in the first sentencing

hearing), the District Court noted that Macon likely qualified as a career offender.

Pursuant to the 1998 U.S. Sentencing Guidelines Manual (“Guidelines”), Macon’s

recommended sentence under the Career Offender Guidelines range was 360 months to

life, but under the Crack Cocaine Guidelines range was 210 to 262 months. Holding that

he was a career offender, the Court nonetheless sentenced Macon to 210 months. It stated


1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and, as we determine,
§ 3582(c)(2). We have jurisdiction under 18 U.S.C. § 1291. We review de novo a district
court’s interpretation of the Guidelines. United States v. Mateo, 560 F.3d 152, 154 (3d
Cir. 2009). We review a court’s decision to grant or deny a defendant’s motion to reduce
a sentence under § 3582(c)(2) for abuse of discretion. Id.


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that his criminal history category significantly over-represented the seriousness of his

criminal history and the likelihood he would recidivate, which was a basis for downward

departure under § 4A1.3. See U.S. Sentencing Guidelines Manual § 4A1.3 (1998)

[hereinafter U.S.S.G.]. In granting the departure, however, the District Court cited

§ 5K2.0 of the Guidelines.

       In 2007, Amendment 706 lowered the base offense levels for most crack cocaine

offenses. U.S.S.G. supp. app. C, amend. 706 (2007). Macon filed a Motion for Relief

Under 18 U.S.C. § 3582(c) contending that, notwithstanding his career offender status, he

was actually sentenced based on the Crack Cocaine Guidelines range, and was therefore

eligible for a sentence reduction pursuant to Amendment 706. The District Court denied

Macon’s Motion on the basis that United States v. Mateo, 560 F.3d 152 (3d Cir. 2009),

applied. The Court also noted that Macon’s current sentence was necessary to promote

respect for the law and deter criminal conduct, in light of his post-sentencing prison

regulation violations (since incarceration, Macon committed six institutional infractions,

ranging from possessing postage stamps to fighting, although he also participated in

educational programs and received his graduate equivalency diploma). Macon timely

appealed.

                                             II.

       Macon and the government dispute the District Court’s determination that Mateo

governed Macon’s § 3582(c)(2) Motion. We need not address the question, however,

because our intervening decision in Flemming establishes that Macon was eligible for a

sentence reduction. Nonetheless, eligible does not mean entitled: the decision to grant a


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departure is committed to the district court’s discretion, which in this case the Court

exercised properly in declining to reduce Macon’s sentence.

                                              A.

         We begin by determining the basis of Macon’s downward departure. Although the

District Court cited § 5K2.0 in granting the departure, its stated reasons track the

language of § 4A1.3 nearly verbatim.2 Section 5K2.0 is a catchall provision that applies

in the absence of an applicable Guideline provision. Section 4A1.3, in comparison,

applies when a defendant’s career offender status over-represents his criminal history,

which is exactly what the District Court determined in this case. We therefore conclude

Macon’s downward departure was granted properly pursuant to § 4A1.3.

         In Flemming, we held that “under a pre-2003 edition of the Sentencing Guidelines,

a career offender who is granted a § 4A1.3 downward departure to the Crack Cocaine

Guidelines range is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).” 617




2
    Section 4A1.3 of the 1998 Guidelines provided:

         If reliable information indicates that the criminal history category does not
         adequately reflect the seriousness of the defendant’s past criminal conduct or the
         likelihood that the defendant will commit other crimes, the court may consider
         imposing a sentence departing from the otherwise applicable guideline range.
         ....
         There may be cases where the court concludes that a defendant’s criminal history
         category significantly over-represents the seriousness of a defendant’s criminal
         history or the likelihood that the defendant will commit further crimes.

U.S.S.G. § 4A1.3 (1998). Section 5K2.0 applied only if there were “mitigating
circumstances . . . not adequately taken into consideration by the Sentencing Commission
in formulating the guidelines . . .” Id. § 5K2.0.

                                              4
F.3d at 272. The facts before us in Flemming were remarkably similar to the ones before

us now, and in Flemming we stated:

       Though the District Court agreed that Flemming technically qualified as a career
       offender, it declined to sentence him within that range, and instead applied the
       Crack Cocaine Guidelines range after determining under § 4A1.3 that the career
       offender enhancement overstated the seriousness of his criminal history. In other
       words, the District Court “actually used” the Crack Cocaine Guidelines range,
       rather than the Career Offender Guidelines range, when it sentenced Flemming.

Id. at 258. Based on the factual similarity to Flemming, we agree with Macon that the

District Court used the Crack Cocaine Guidelines range to set his sentence at 210 months.

As a “a career offender who [was] granted a § 4A1.3 downward departure to the Crack

Cocaine Guidelines range,” Macon therefore “is eligible for a sentence reduction under

18 U.S.C. § 3582(c)(2).” Id. at 272.

                                          B.

       Although Macon was eligible for a sentence reduction, the decision to grant one

remains within the discretion of the district court. See United States v. Mateo, 560 F.3d

152, 154 (3d Cir. 2009). In this case, the District Court had before it Macon’s pre- and

post-sentencing conduct, both positive and negative. It considered the factors set forth in

18 U.S.C. § 3553(a) and concluded that Macon’s original sentence was “necessary to

promote respect for the law and provide deterrence.” We cannot conclude that it

exceeded the permissible bounds of discretion in denying Macon’s motion for a reduction

in sentence.

                                          *****




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       We have considered all contentions presented by the parties and conclude that no

further discussion is necessary.

       The judgment of the District Court will be AFFIRMED.




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