CLD-257                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-1631
                                     ___________

                          UNITED STATES OF AMERICA

                                           v.

                        FERNANDO PEÑA, 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. 2-03-cr-00487-009)
                      District Judge: Honorable John R. Padova
                     ____________________________________

           Submitted for Possible Dismissal Due to a Jurisdictional Defect or
        for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

                              August 16, 2012
           Before: RENDELL, HARDIMAN AND COWEN, Circuit Judges

                          (Opinion filed: September 6, 2012)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Fernando Peña, proceeding pro se, appeals from orders of the District Court

denying his motion to reduce sentence and motion for reconsideration. For the reasons
that follow, we will summarily affirm.



         In 2004, a jury convicted Peña of one count of conspiracy to distribute cocaine

base. At sentencing, the District Court found that the quantity of drugs involved in

Peña’s offense was 1.5 kilograms. Applying the Sentencing Guidelines then in effect, the

District Court determined that Peña’s base offense level was 38. The court added two

levels for Peña’s leadership role in the criminal organization and another two levels for

his possession of a firearm in connection with the offense, resulting in a total offense

level of 42. Applying a criminal history category of VI, his sentencing range was 360

months to life in prison. The District Court varied downward and sentenced Peña to 260

months in prison. We affirmed. United States v. Keyes, 214 F. App’x 145, 155 (3d Cir.

2007).

         In 2009, Peña filed a motion to reduce his sentence pursuant to 18 U.S.C.

§ 3582(c)(2), asserting that Amendment 706 to the Sentencing Guidelines lowered his

total offense level. The District Court denied the motion, concluding that Peña’s

sentencing range would remain at 360 months to life even though his total offense level

would be reduced to 40 under the amendment. We affirmed this decision by order

(docketed in C.A. No. 09-2444).

          In 2011, Peña filed another motion to reduce his sentence pursuant to 18 U.S.C.

§ 3582(c)(2). He argued that he was eligible for a reduction under Amendment 750. The


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District Court denied the motion, concluding that application of the amendment would

not lower Peña’s sentencing range. Peña’s motion for reconsideration was denied, and

this appeal followed.

        We begin with a question of appellate jurisdiction. The order denying Peña’s

motion to reduce sentence was entered on January 23, 2012. He had 14 days, or until

February 6, 2012, to file a notice of appeal. See Fed. R. App. P. 4(b)(1). Peña filed his

notice of appeal on February 23, 2012, 1 more than two weeks late. He has not alleged

any delay on behalf of the prison in transmitting the District Court’s order that might be

excluded from the time it took him to file his notice of appeal. Accordingly, his notice of

appeal is untimely. Nonetheless, we will review the merits of this appeal because the 14-

day period for appeals in a criminal case is non-jurisdictional, see Virgin Islands v.

Martinez, 620 F.3d 321, 328-29 (3d Cir. 2010), and the Government has not pressed the

timeliness issue in this case.

       We review a district court’s interpretation of the Sentencing Guidelines de novo.

United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). We review a district court’s

ultimate decision to deny a motion pursuant to § 3582(c)(2) for abuse of discretion. Id.

Under § 3582(c), a court may reduce a term of imprisonment when a defendant was

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


1
  We apply the prison mailbox rule, Houston v. Lack, 487 U.S. 266, 270-72 (1988), and
credit Peña’s sworn statement that he gave his notice of appeal to prison staff on
February 23, 2012.

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Sentencing Commission.” 18 U.S.C. § 3582(c)(2). “That means . . . that a § 3582(c)(2)

reduction is available only if the Guidelines amendment has ‘the effect of lowering the

sentencing range actually used at sentencing.’” United States v. Thompson, 682 F.3d

285, 287 (3d Cir. 2012) (quoting Mateo, 560 F.3d at 155). Amendment 750 re-

promulgates as permanent a temporary amendment that implemented the Fair Sentencing

Act of 2010 and revised the cocaine base quantity levels in the Drug Quantity Table in

§ 2D1.1 of the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual app. C,

vol. III, Amend. 750 (2011). If Amendment 750 has the effect of lowering a defendant’s

sentencing range, a court may reduce the term of imprisonment pursuant to § 3582(c).

See U.S. Sentencing Guidelines Manual §1B1.10(a), (c) (2011).

       The District Court did not abuse its discretion in denying Peña’s motion pursuant

to § 3582(c)(2) because Amendment 750 does not lower his sentencing range. At

sentencing, the District Court determined that Peña’s crime involved 1.5 kilograms of

cocaine base, that his base offense level was 38, that his total offense level was 42, and

that, at a criminal history category of VI, his sentence range was 360 months to life.

Under § 2D1.1(c), as amended, a crime involving at least 840 grams but less than 2.8

kilograms of cocaine base has a base offense level of 34. Applying the four-level

enhancement, Peña’s total offense level would be 38, which, at a criminal history

category of VI, results in a sentencing range of 360 months to life. This is the same range

used when Peña was originally sentenced. Because Amendment 750 does not have “the


                                             4
effect of lowering the sentencing range actually used at sentencing,” Thompson, 682 F.3d

at 287, Peña is not entitled to a reduction in sentence. The District also did not abuse its

discretion in denying Peña’s motion for reconsideration because he failed to identify any

error in the court’s analysis. See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010).

       There being no substantial question presented by this appeal, we will summarily

affirm the District Court’s orders. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.




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