                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3622
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                KENNY MARTINEZ,
                                                Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                     (D.C. Criminal Action No. 2-13-cr-00143-001)
                       District Judge: Honorable Stewart Dalzell
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 2, 2016

          Before: AMBRO, GREENAWAY, JR. and GARTH, Circuit Judges

                               (Opinion filed July 19, 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.
         Pro se appellant Kenny Martinez appeals the District Court’s orders denying his

motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) and his motion to

alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure.

For the reasons detailed below, we will affirm.

         In 2013, Martinez pleaded guilty to conspiracy to distribute 500 grams or more of

cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B). At the sentencing hearing,

the District Court adopted a Presentence Investigation Report (PSR), including the PSR’s

determination that Martinez qualified as a career offender under § 4B1.1 of the United

States Sentencing Guidelines. Based on that designation, Martinez’s Guidelines range

was 188 to 235 months’ imprisonment. However, the District Court concluded that

Martinez’s career-offender status significantly over-represented his criminal history. See

U.S.S.G. § 4A1.3(b)(1). The Court therefore departed downward, and sentenced

Martinez to a term of 110 months’ imprisonment. This sentence is within the Guidelines

range that would have applied if Martinez were not a career offender.

         In March 2015, Martinez filed a motion under § 3582(c)(2) based on Amendment

782 to the Guidelines, which reduced the offense levels assigned to most drug quantities

under U.S.S.G. § 2D1.1(c) by two levels. The District Court denied Martinez’s motion.

Martinez then filed a motion under Rule 59(e), which the District Court also denied. He

then filed a timely notice of appeal.1


1
    The District Court permissibly granted Martinez’s motion for an extension of time to
                                             2
         We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over

the District Court’s denial of the § 3582(c) motion, United States v. Savani, 733 F.3d 56,

60 (3d Cir. 2013), and review its denial of the Rule 59(e) motion for abuse of discretion,

Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir.

1999).

         We agree with the District Court’s disposition of Martinez’s motions. A district

court typically cannot “modify a term of imprisonment once it has been imposed” unless

a defendant is eligible for a reduction pursuant to § 3582(c). Dillon v. United States, 560

U.S. 817, 819 (2010) (quoting § 3582(c)). Section 3582(c)(2) 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.” § 3582(c)(2); United States v.

Flemming, 723 F.3d 407, 410 (3d Cir. 2013).

         Here, as the Government argues, a reduction in Martinez’s sentence would not be

“consistent with applicable policy statements issued by the Sentencing Commission.” A

reduction in a sentence is not consistent with the relevant policy statement if the

amendment “does not have the effect of lowering the defendant’s applicable guideline

range.” U.S.S.G. § 1B1.10(a)(2)(B). The Guidelines define “applicable guideline range”

file an appeal under Rule 4(b)(4) of the Federal Rules of Appellate Procedure. Martinez
filed a motion to proceed on appeal in forma pauperis — which we treat as a notice of
appeal, see Fitzsimmons v. Yeager, 391 F.2d 849, 853 (3d Cir. 1968); 3d Cir. L.A.R. 3.4
— within the time prescribed by the District Court.
                                             3
as “the guideline range that corresponds to the offense level and criminal history category

determined pursuant to § 1B1.1(a), which is determined before consideration of any

departure provision in the Guidelines Manual.” U.S.S.G. § 1B1.10 cmt. n.1(A) (emphasis

added); see also U.S.S.G. § 1B1.10 cmt. n.8. Thus, as we have ruled in similar cases,

Martinez’s “applicable guideline range” is the “range calculated pursuant to the career

offender designation of § 4B1.1, and not the range calculated after applying any

departure or variance.” Flemming, 723 F.3d at 412; see also United States v. Ware, 694

F.3d 527, 534 (3d Cir. 2012).2 As a result, Amendment 782 — which alters the offense

levels for drug crimes but does not affect the offense levels for career offenders — would

not lower Martinez’s applicable guideline range, and it would hence be contrary to the

applicable policy statement to reduce Martinez’s sentence.

       In his Rule 59(e) motion, Martinez essentially reiterated arguments that the

District Court had rejected in denying his § 3582(c)(2) motion. The District Court

consequently did not err in denying the Rule 59(e) motion. See Lazaridis v. Wehmer,

591 F.3d 666, 669 (3d Cir. 2010) (per curiam).


2
  Martinez argues that the commentary’s definition of “applicable guideline range,” see
U.S.S.G. § 1B1.10 cmt. n.1(A), “is not binding” because it conflicts with U.S.S.G.
§ 1B1.10(b)(1). We are not persuaded. Section 1B1.10(b)(1) provides instructions for
calculating an amended guideline range, but neither addresses when a reduction in
sentence would be consistent with the applicable policy statement nor purports to define
“applicable guideline range.” Thus, we can discern no inconsistency between the
commentary and § 1B1.10(b)(1). See generally Ware, 694 F.3d at 534 (concluding that
commentary at issue is “not in conflict with the plain language of § 3582(c)(2) and is
therefore binding on the District Courts”).
                                             4
We will therefore affirm the District Court’s judgment.




                                     5
