                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-1199
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                        OMARI HOWARD PATTON, a/k/a “O”

                                  Omari H. Patton,
                                           Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                        (W.D. Pa. Crim. No. 2:02-cr-00093-001)
                     District Judge: Honorable Donetta W. Ambrose
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 7, 2016

             Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges

                              (Opinion filed: June 13, 2016)
                                     ___________

                                        OPINION*
                                       ___________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Omari Howard Patton, 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 affirm the District Court’s judgment.

                                             I.

       In 2004, a federal jury found Patton guilty of numerous felony drug offenses,

including conspiracy to distribute one kilogram or more of heroin, five kilograms or more

of cocaine, and 50 grams or more of cocaine base; possession with intent to distribute

fifty grams or more of cocaine base; and possession with intent to distribute 100 grams or

more of heroin. At sentencing, the District Court found that Patton was accountable for

10 kilograms of heroin and 600 grams of cocaine base, which corresponded with a base

offense level of 36 under the United States Sentencing Guidelines then in effect. Patton’s

final offense level was established at level 38, with a criminal history category of IV,

resulting in the Guideline range of 324 to 405 months. The District Court imposed an

aggregate sentence of 360 months. We affirmed the judgment on direct appeal. United

States v. Patton, 292 F. App’x 159 (3d Cir. 2008) (not precedential).

       Patton since has pursued a series of challenges to his sentence by way of motions

under 28 U.S.C. § 2255, Rule 36 of the Federal Rules of Criminal Procedure, and

18 U.S.C. § 3582(c)(2), which authorizes a district court to reduce the sentence of a

defendant “who has been sentenced to a term of imprisonment based on a sentencing




                                             2
range that has subsequently been lowered by the Sentencing Commission.” His sentence

has been reduced to 294 months, following a recent § 3582(c)(2) motion.1

       The motion that is the subject of this appeal appears to be Patton’s fourth

§ 3582(c)(2) motion. He filed the motion in January 2016, relying on Sentencing

Guidelines Amendment 706, which took effect in 2007 and was made retroactive the

following year. That amendment lowered by two the offense level for certain offenses

involving crack cocaine. In his motion, Patton argued that the evidence at trial did not

support the District Court’s finding that he was responsible for 10 kilograms of heroin, an

argument he has previously made in other post-conviction litigation. The District Court

denied the motion, and Patton appeals.

       On appeal, Patton continues to press his argument that the District Court erred in

finding him responsible for 10 kilograms of heroin. He seeks remand for an evidentiary

hearing or, alternatively, permission from this Court to file a second or successive 28

U.S.C. § 2255 motion. The Government responds by asking this Court to affirm to the

District Court’s order. The Government argues that Patton’s motion is beyond the scope

of § 3582(c)(2) and that he is not entitled to a reduction under Amendment 706 because

his sentence was determined by the amount of heroin involved in the case, making

Amendment 706 inapplicable.2



       1
         His other challenges, and his appeals, see, e.g., C.A. Nos. 15-2840, 15-3125, 15-
2337, and 14-4157, have been unsuccessful.
       2
         The Government requests that we issue a precedential opinion in this matter.
                                             3
                                            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).

       Patton fails to meet § 3582(c)(2)’s first criterion, as Amendment 706 did not have

the effect of lowering his guideline range. Patton’s sentence was driven by the amount of

heroin involved in his case; Amendment 706, which involves crack cocaine, did not

lower his sentencing range. Patton’s effort to relitigate the amount of heroin for which he

was found responsible is beyond the scope § 3582(c)(2), as we have previously explained

in one of Patton’s earlier appeals, United States v. Patton, 619 F. App’x 43, 45 (3d Cir.

2015). To the extent he seeks permission to file a second or successive 28 U.S.C. § 2255
                                             4
motion, that request is denied. He has not demonstrated that he meets the criteria to file

such a motion. See 28 U.S.C. § 2255(h).

                                            IV.

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

Patton’s motion for a reduction of sentence.3




       3
         We decline the Government’s request that we publish a precedential opinion in
this matter.
                                          5
