ALD-407                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-2805
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                EJIKE EGWUEKWE,
                                           Appellant
                       ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Criminal No. 1:14-cr-00006-002)
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

                   Submitted for Possible Dismissal Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   September 9, 2016

            Before: AMBRO, SHWARTZ, and NYGAARD, Circuit Judges

                           (Opinion filed: September 16, 2016)

                                        _________

                                        OPINION *
                                        _________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Ejike Egwuekwe, a federal prisoner proceeding pro se, appeals from the District

Court’s denial of his motion for a sentence reduction filed under 18 U.S.C. § 3582(c)(2).

We will summarily affirm the District Court’s judgment.

                                            I.

       In 2015, Egwuekwe pleaded guilty to a one-count information alleging mail fraud,

in violation of 18 U.S.C. § 1341. He received a sentence of 46 months in prison, two

years of supervised release, $301,041.25 in restitution, and a $100 special assessment.

He did not file a direct appeal. In May 2016, Egwuekwe filed a motion to reduce his

sentence based on United States Sentencing Guidelines Manual Amendments 790, 791,

and 792. 1 In his original motion and an amended filing, Egwuekwe argued that he was

entitled to the benefit of those amendments, which took effect November 1, 2015. In

support, he relied on the fact that although his sentencing hearing took place October 30,

2015, the District Court did not enter the judgment until November 2, 2015. 2 The

District Court denied the motion, determining that the amendments did not apply

retroactively. Egwuekewe appeals.




1
 Amendment 790 revised the Relevant Conduct guideline, U.S.S.G. § 1B1.3;
Amendments 791 and 792 revised U.S.S.G. § 2B1.1, which regards economic crimes.
2
 The District Court applied the Guidelines Manual in effect at the time of the sentencing
hearing.

                                             2
                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We generally review a district

court’s denial of a motion for reduction of sentence under § 3582(c)(2) for abuse of

discretion. United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). When a district

court concludes that a defendant is not eligible for relief under § 3582(c)(2), however, our

review is plenary. United States v. Weatherspoon, 696 F.3d 416, 421 (3d Cir. 2012).

                                            III.

       A district court generally cannot modify a term of imprisonment once it has been

imposed, but a defendant may be eligible for a reduction pursuant to § 3582(c) under

certain circumstances. Section 3582(c) 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.” 18 U.S.C. § 3582(c)(2); United States v. Flemming,

723 F.3d 407, 410 (3d Cir. 2013). The relevant policy statement permits a reduction only

on the basis of amendments that are made retroactive in U.S.S.G. § 1B1.10(d) (formerly

§ 1B1.10(c)). See Dillon v. United States, 560 U.S. 817, 831 (2010); United States v.

Doe, 564 F.3d 305, 313 (3d Cir. 2009).

       Egwuekwe fails to meet § 3582(c)(2)’s second requirement, as the Sentencing

Commission has not listed the Amendments 790, 791, or 792 in U.S.S.G. § 1B1.10(d) as

amendments that apply retroactively. See U.S.S.G. § 1B1.10(d). Thus, because the

District Court correctly denied Egwuekwe’s motion on that basis, we will summarily

affirm the District Court’s order. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.


                                             3
       Egwuekwe’s other arguments do not change the result. His claim that he should

have gotten the benefit of the amendments in effect at the time his judgment was entered

is not an argument that would entitle him to relief under § 3582(c)(2). If the amendments

did not come into effect until after he was sentenced, they are not retroactively

applicable, as we explained. And if the amendments were in effect when he was

sentenced, the sentencing range cannot be considered to have “subsequently been

lowered.” Also, his claim that counsel was ineffective for failing to inform him about the

above amendments is not a proper basis for § 3582(c)(2) relief. We note that the District

Court provided Egwuekwe with a form to file a motion under 28 U.S.C. § 2255, which is

generally the proper manner to bring an ineffective assistance of counsel claim. We

leave it to the District Court in the first instance to address any issues Egwuekwe may

raise therein.

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s order denying

Egwuekwe’s motion for a reduction of sentence.




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