DLD-075                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-3738
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                     NATHANIEL MONTGOMERY, a/k/a Shu Shu

                                   Nathaniel Montgomery,
                                               Appellant

                        __________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           (D.C. Crim. No. 02-cr-00172-20)
                             District Judge: Stewart Dalzell
                       __________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   December 15, 2016

            Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

                            (Opinion filed December 29, 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

         Nathaniel Montgomery appeals from an order of the District Court denying his

motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). For the reasons that

follow, we will summarily affirm.

         Montgomery was convicted following a jury trial of conspiring to distribute

powder cocaine and crack cocaine. “At sentencing, the [District] Court determined that

he was responsible for distributing more than 1.5 kilograms of crack cocaine and,

separately, more than 150 kilograms of powder cocaine.” United States v. Montgomery,

398 F. App’x 843, 844 (3d Cir. 2010). Following a Booker remand,1 Montgomery was

resentenced in 2006 to a term of imprisonment of 280 months. We affirmed this sentence

on direct appeal, see United States v. Montgomery, 2007 WL 3122255 (3d Cir. Oct. 26,

2007).

         In 2011, Montgomery filed a motion for reduction of sentence pursuant to 18

U.S.C. § 3582(c)(2) and Sentencing Guidelines Amendment 750, which lowered the base

offense level for crack cocaine. The District Court concluded that Montgomery was not

entitled to a sentence reduction and denied the § 3582(c)(2) motion, reasoning that the

established quantity of 150 kilograms of powder cocaine continued to result in a base

offense level of 38. We affirmed on appeal, see United States v. Montgomery, 473 F.

App’x 173, 174-75 (3d Cir. 2012).

         Most recently, in an order entered on February 23, 2015, the District Court, by

agreement of the parties, reduced Montgomery’s sentence pursuant to 18 U.S.C. §

1
    United States v. Booker, 543 U.S. 220 (2005).
                                              2
3582(c)(2) and Amendment 782 to a term of imprisonment of 235 months, see Docket

Entry No. 2641.

      At issue in this appeal, on July 11, 2016, Montgomery filed a § 3582(c)(2) motion,

seeking a reduction under Amendment 759. Montgomery also argued that the

Government withheld an exculpatory statement made by a cooperating witness. The

Government responded to Montgomery’s § 3582(c)(2) motion, arguing that Amendment

759 implemented Amendment 750, and that relief was not warranted under those

amendments, but that a reduction under Amendment 782 was warranted. The

Government noted that, in this Amendment, the Sentencing Commission lowered the

base offense level for all drug offenses, and, under the new U.S.S.G. § 2D1.1(c)(2), at

least 150 kilograms of cocaine but less than 450 kilograms of cocaine carries a base

offense level of 36, rather than 38. This would have the effect of lowering

Montgomery’s Guidelines imprisonment range to 235-293 months.

      In an order entered on September 13, 2016, the District Court denied

Montgomery’s motion for reduction of sentence, noting that his sentence had already

been reduced by agreement of the parties to 235 months’ imprisonment.

      Montgomery appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk

advised Montgomery that his appeal was subject to summary action under Third Cir.

LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, but he has not

done so.

      We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The

                                            3
District Court’s ultimate decision to deny a § 3582(c)(2) motion is reviewed for an abuse

of discretion, but we review de novo the District Court’s interpretation of the Guidelines.

See United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). In 2010, the United States

Sentencing Commission promulgated Amendment 750 to the Guidelines that, effective

November 1, 2011, “reduced the base offense levels for crack cocaine offenses by

increasing the weight of drugs associated with each offense level.” See United States v.

Ware, 694 F.3d 527, 529-30 (3d Cir. 2012). Simultaneously, the Commission also

promulgated Amendment 759, “adding the relevant portions of Amendment 750 to the

list of amendments that may trigger a retroactive sentence reduction,” and modifying the

commentary to its policy statement to specify that “applicable guideline range” is to be

calculated prior to any variance or departure. Id. at 531. Amendment 759 thus provided

a new and more restrictive definition of “applicable guideline range,” see United States v.

Flemming, 723 F.3d 407, 413 (3d Cir. 2013).

       Montgomery was not entitled to a sentence reduction under Amendments 750 and

759, and thus District Court properly denied his most recent § 3582(c)(2) motion. See

Montgomery, 473 F. App’x at 174 (“[O]ur observation from Montgomery’s prior appeal

retains its full force: the cocaine exposure alone would suffice to place Montgomery at a

base offense level of 38.”). Moreover, section 3582(c)(2) authorizes “only a limited

adjustment to an otherwise final sentence and not a plenary resentencing proceeding.”

Dillon v. United States, 560 U.S. 817, 826 (2010). In addition, as noted by the District




                                             4
Court, Montgomery previously received a reduction in his sentence to 235 months’

imprisonment.2

       For the foregoing reasons, we will summarily affirm the order of the District Court

denying Montgomery’s most recent § 3582(c)(2) motion.




2
  In a reply to the Government’s response, which was mailed from prison two days after
the District Court issued its decision (and filed on the docket on September 23, 2016), see
Docket Entry No. 2771, Montgomery reiterated his original arguments, which do not
persuasively establish that he is entitled to a reduction under Amendment 759. But he
also asked the District Court, for the first time, to award him a reduction in sentence
under Amendment 794. Amendment 794, which went into effect on November 1, 2015,
introduced in the commentary of § 3B1.2 a list of non-exhaustive factors that a
sentencing court should consider in determining whether to apply a mitigating role
adjustment, see United States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir. 2016).
Because this request was received after the District Court’s final order issued, the Court’s
decision and our affirmance is without prejudice to any relief Montgomery may be due
under Amendment 794. We express no view whatever on that subject.
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