BLD-184                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3806
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                BORN ISLAM RUSH,
                                              Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                              (D.N.J. No. 3-09-cr-00174-002)
                      District Judge: Honorable Anne E. Thompson
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 17, 2016

              Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges

                                 (Filed: March 23, 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.
       On January 24, 2011, Born Islam Rush pleaded guilty to one count of possession

with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C.

§ 841. Prior to sentencing, the parties agreed that the appropriate base offense level

under the United States Sentencing Guidelines would be 26 if the court relied on the

drug quantity table, U.S.S.G. § 2D1.1(c)(7) (Nov. 1, 2010). The parties further agreed,

however, that if the District Court designated Rush a “career offender”—as the pre-

sentence investigation report recommended—his base offense level would increase to 34.

See id. § 4B1.1(b)(2). In either case, Rush would be entitled to a three-level reduction for

acceptance of responsibility and assistance with the investigation. See id. § 3E1.1(b).

       At sentencing, the District Court determined that Rush was a career offender, but

varied downward and designated a base offense level of 23. The court sentenced him to

96 months’ imprisonment, a sentence toward the bottom of the Guidelines’ range (92-115

months).

       In November 2014, Rush submitted a letter to the District Court clerk asking to be

“appointed counsel or referred to the office of legal counsel to be represented in the

matter of all drugs minus 2 level amendment.” (Lttr; ECF No. 43.) The District Court

characterized Rush’s request as a motion to reduce his sentence pursuant to Amendment

782,1 see 18 U.S.C. § 3582(c)(2), and referred it to the Office of the Public Defender.

Upon review, the Public Defender’s Office determined that Rush was not eligible for

1
 Amendment 782 to the Guidelines reduced by two levels the offense levels assigned to
most drug quantities under U.S.S.G. § 2D1.1(c). See U.S.S.G. § 2D1.1(c) & app. C.
supp., amends. 782, 788 (2014).
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relief under § 3582(c)(2) because his Guidelines range was based on the career-offender

Guideline, U.S.S.G. § 4B1.1, not the drug-quantity table revised by Amendment 782, id.

§ 2D1.1(c)(3). The District Court agreed and denied Rush’s motion.

       Rush moved for reconsideration, insisting that he had in fact been sentenced under

§ 2D.1(c)(3). Rush also objected to the District Court’s characterization of his motion for

appointment of counsel to assist him in § 3582(c)(2) proceedings as a § 3582(c)(2)

motion itself.

       In light of Rush’s motion for reconsideration, the District Court directed the

Defender’s Office to further explain the basis for its determination that Rush was

sentenced as a career offender. In response, the Defender’s Office stated that both the

sentencing transcript and Probation Office’s Report of Sentence make clear that the

sentencing court did not rely on the drug-quantity tables in § 2D1.1(c)(3). The District

Court agreed and denied Rush’s request for reconsideration. The court did not address

Rush’s complaint that it had mischaracterized his motion for appointment of counsel.

       Rush then filed the motion at issue here, a § 3582(c)(2) motion labeled as such,

again arguing that the court had mischaracterized his counsel motion, and again asking

the court to grant him relief under § 3582(c)(2). The District Court determined that Rush

was procedurally barred from bringing this motion based on the law of the case doctrine.

See Pub. Interest Research Grp. of N.J. v. Magnesium Elektron, Inc., 123 F.3d 111, 116

(3d Cir. 1997) (“The law of the case doctrine directs courts to refrain from re-deciding

issues that were resolved earlier in the litigation.”). In applying the law-of-the-case
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doctrine, the court recognized that reconsideration of a previously decided issue is

warranted in certain extraordinary circumstances, see Bridge v. U.S. Parole Comm’n, 981

F.2d 97, 103 (3d Cir. 1992), and considered whether its decision to characterize Rush’s

counsel motion constituted such an extraordinary circumstance, but concluded that it did

not because Rush was not prejudiced in any way by the court’s action. Rush now

appeals.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. In considering the denial of

Rush’s § 3582(c)(2) motion, we exercise plenary review over the District Court’s

interpretation of the Sentencing Guidelines and otherwise review the denial of relief for

abuse of discretion. United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). We may

summarily affirm the District Court’s rulings if there is no substantial question presented

on appeal. 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. We may affirm on any basis

supported by the record. See Erie Telecomms., Inc. v. City of Erie, 853 F.2d 1084, 1089

n.10 (3d Cir. 1988).

       Upon review, we agree with the District Court that Rush was not prejudiced by the

District Court’s adjudication of his motions because he is not entitled to a reduction of

sentence under Amendment 782. Generally, a district court cannot “modify a term of

imprisonment once it has been imposed” unless a defendant is eligible for a reduction of

sentence pursuant to § 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
                                             4
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). A reduction in sentence is not consistent

with the relevant policy statement unless the amendment has “the effect of lowering the

defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The Sentencing

Guidelines define “applicable guideline range” 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

or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A) (emphasis added).

       Here, the 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. As the District Court noted, the fact

that Rush received a downward variance does not change the applicable guideline range

under which his sentence was calculated. Amendment 782, which alters the offense

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

not lower Rush’s applicable guidelines range, and it would thus be contrary to the

applicable policy statement to reduce his sentence. Accordingly, the District Court did

not err in denying Rush’s motion pursuant to § 3582(c)(2).

       Because this appeal presents no substantial question, we will summarily affirm

the District Court’s order. See Third Cir. LAR 27.4 and I.O.P. 10.6.




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