                                                                 NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 18-3452
                                     ____________

                           UNITED STATES OF AMERICA

                                           v.

                             JAMES RICHARD CULMER,

                                                Appellant
                                     ____________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. No. 2-12-cr-00489-001)
                     District Judge: Honorable William H. Walls
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 4, 2019

Before: CHAGARES, HARDIMAN, Circuit Judges, and GOLDBERG, District Judge. ∗

                            (Opinion Filed: April 18, 2019)




      *
        The Honorable Mitchell S. Goldberg, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
                                       ____________

                                        OPINION **
                                       ____________

HARDIMAN, Circuit Judge.

       James Culmer appeals the District Court’s order granting the Government’s

motion for reconsideration of his sentence reduction. We will affirm.

                                              I1

       In July 2012, Culmer pleaded guilty to conspiring to possess over one kilogram of

heroin with intent to distribute it. Early the next year, the District Court sentenced him to

192 months’ imprisonment, followed by 5 years’ supervised release.

       This was not Culmer’s first encounter with the penal system. In June 1990, he was

convicted of possession with intent to distribute crack cocaine and was sentenced to 151

months’ imprisonment. But he violated the terms of his supervised release a few years

after he was released from prison in 2000, and served another eight months before being

released again. Soon thereafter, in 2006, Culmer was convicted of conspiracy to

distribute heroin, for which he was sentenced to 73 months’ imprisonment. He was


       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       1
         The District Court had subject matter jurisdiction under 18 U.S.C. § 3231, and
jurisdiction to consider Culmer’s motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2). United States v. Ortiz-Vega, 744 F.3d 869, 870 n.1 (3d Cir. 2014). We have
jurisdiction under 28 U.S.C. § 1291. We review the Court’s grant of the Government’s
motion for reconsideration for abuse of discretion, reviewing purely legal questions de
novo. See United States v. Thompson, 825 F.3d 198, 203 (3d Cir. 2016); Lazaridis v.
Wehmer, 591 F.3d 666, 669 (3d Cir. 2010).
                                              2
released in late 2009. For both of those offenses, Culmer served time within 15 years of

his 2012 heroin conspiracy offense. See USSG § 4A1.2(e)(1). So at his 2013 sentencing,

he was classified as a career offender under USSG § 4B1.1(a).

      Culmer’s PSR, adopted without change by the District Court, indicated a criminal

offense level of 34 and a criminal history category of VI. After departing downward from

the applicable Guidelines range, the Court imposed a sentence of 192 months.

      Culmer then filed a motion to reduce his sentence in light of Amendment 782 to

the United States Sentencing Guidelines, which retroactively reduced many drug-crime

base offense levels. The Court granted his motion under 18 U.S.C. § 3582(c)(2). But

there was a problem. Because Culmer was a career offender, his “applicable guideline

range”—before any departure or variance, see USSG § 1B1.10, cmt. n.1(A) (2011)—was

governed by the Career Offender Guidelines, not the Drug Guidelines modified by

Amendment 782. So reducing Culmer’s sentence was not “consistent with applicable

policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The

Government accordingly moved for reconsideration and the Court vacated its order

reducing Culmer’s sentence. This appeal followed.

                                            II

      A District Court may reduce a sentence under Section 3582(c)(2) only if it was

“based on a sentencing range that has subsequently been lowered by the Sentencing

Commission” and the reduction is “consistent with applicable policy statements issued by

the Sentencing Commission.” Culmer cannot satisfy the second requirement.
                                            3
       “[A] reduction in sentence pursuant to a retroactive amendment to the Guidelines

is not consistent with its policy statements unless the amendment has ‘the effect of

lowering the defendant’s applicable guideline range.’” United States v. Flemming, 723

F.3d 407, 410 (3d Cir. 2013) (quoting USSG § 1B1.10(a)(2)(B)). The Sentencing

Commission has defined “applicable guideline range” to mean “the guideline range that

corresponds to the offense level and criminal history category determined pursuant to

Section 1B1.1(a), which is determined before consideration of any departure provision in

the Guidelines Manual or any variance.” USSG § 1B1.10 cmt. n.1(A) (2011) (emphasis

added).

       Amendment 782, made retroactive by Amendment 788, “reduced the base offense

level by two levels for most drug offenses.” Hughes v. United States, 138 S. Ct. 1765,

1774 (2018). But the amendment does not help Culmer because his “applicable guideline

range” was defined by the Career Offender Guidelines, which were unaffected by

Amendment 782. United States v. Thompson, 825 F.3d 198, 202 (3d Cir. 2016). Although

Culmer was sentenced based on the Drug Guidelines, the Court did so only after it

departed downward from the applicable criminal history category and varied downward

from the applicable criminal offense level. Culmer’s arguments address only Section

3582(c)(2)’s first requirement—that the sentence be based on a range lowered by a

retroactive amendment. But because his “applicable guideline range” was, and remains, a

Career Offender range, a sentence reduction would not be consistent with Guidelines

§ 1B1.10. And since Culmer was not eligible for a sentence reduction in the first place,
                                             4
the Court did not err when it granted the motion to reconsider its misstep. We will

therefore affirm the District Court’s order granting the motion for reconsideration.




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