                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-1872
                                     ____________

                           UNITED STATES OF AMERICA

                                           v.

                                   AARON AGNEW,

                                              Appellant
                                     ____________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 1-02-cr-00055-001)
                    District Judge: Honorable William W. Caldwell
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 31, 2013

        Before: McKEE, Chief Judge, FISHER and SLOVITER, Circuit Judges.

                               (Filed: November 8, 2013)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Defendant Aaron Agnew appeals from an order entered by the United States

District Court for the Middle District of Pennsylvania denying a motion for sentence

reduction under 18 U.S.C.§ 3582(c)(2). We will affirm.
                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       On September 13, 2002, a jury found Agnew guilty of distribution and possession

with intent to distribute in excess of fifty grams of crack cocaine, in violation of 21

U.S.C. § 841(a)(1), and possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). The Probation Office prepared a Presentence

Investigation Report ("PSR") assigning Agnew a base offense level of 38, pursuant to

U.S.S.G. § 2D1.1, which provides for a base offense level of 38 when the amount of

crack cocaine involved is 1.5 kilograms or more. 1 It then added two levels each for

possession of a firearm and obstruction of justice, arriving at an adjusted offense level of

42. The PSR then noted that Agnew had two prior relevant felony convictions and was

thus a career offender pursuant to U.S.S.G. § 4B1.1. It calculated his career offender

offense level at 37. Because the career offender table required the Probation Office to

apply the greater of the career offender offense level and the offense level otherwise

applicable, the Probation Office applied Agnew's adjusted offense level of 42. Based on




1
  The PSR used the 2002 edition of the Guidelines Manual—the version in effect at the
time of Agnew's conviction—to calculate Agnew's Guidelines range. That is the edition
used in this opinion.

                                              2
those calculations, the PSR assigned a total offense level of 42 and placed him in criminal

history category VI, resulting in a Guidelines range of 360 months to life.

       The District Court found that the PSR overstated the seriousness of Agnew's

offense and criminal history and made a downward departure to criminal history category

V and offense level 36. The District Court then imposed a 300-month term of

incarceration. On direct appeal, we affirmed Agnew's conviction, but remanded to the

District Court for resentencing in light of the Supreme Court's decision in United States v.

Booker, 543 U.S. 220 (2005). On remand, Agnew argued that consideration of the

sentencing factors set forth in 18 U.S.C. § 3553(a), as well as the disparity of sentences

for crack cocaine offenses versus powder cocaine offenses, provided a basis for a

substantial variance below the original 300-month sentence. The District Court agreed

and reduced Agnew's sentence from 300 months to 210 months.

       In 2007, the United States Sentencing Commission (the "Commission") amended

the crack cocaine Sentencing Guidelines to reduce the base offense level for crack

cocaine offenses by two levels. U.S.S.G., App. C, Amend. 706 (Nov. 1, 2007). The

Commission later stated that the amendment would apply retroactively. U.S.S.G., App.

C, Amend. 713 (May 1, 2008). On September 25, 2008, Agnew filed a motion for a

sentence reduction, requesting that the District Court recalculate his Guidelines range to

account for the retroactive application of the Commission's recent amendment. The




                                             3
District Court denied Agnew's motion on December 29, 2008, on the ground that his

applicable Guidelines range was unaffected by the amendment.

       On August 3, 2010, the Fair Sentencing Act of 2010 ("FSA") was signed into law.

Pub. L. No. 111-220, 124 Stat. 2372 (2010). It reduced the disparity between the amount

of crack cocaine and powder cocaine necessary to trigger certain federal criminal

penalties. The Commission determined that the amendments would apply retroactively.

U.S.S.G., App. C, Amends. 750, 759 (Nov. 1, 2011). In light of the FSA, Agnew filed a

motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) on February 7, 2012.

The District Court denied Agnew's motion on April 20, 2012, concluding that the FSA

amendment did not apply to the Guidelines range for career offenders.

       Agnew filed a notice of appeal on March 25, 2013. 2

                                            II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291.

       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). Our review of a district court's

decision whether to grant or deny a defendant's motion to reduce sentence under §

3582(c)(2) is for abuse of discretion. Id.; see also United States v. Ware, 694 F.3d 527,

531 (3d Cir. 2012).

2
 The government recognizes that Agnew's appeal was not filed timely, but has chosen to
forego a challenge on that ground.

                                             4
                                             III.

                                             A.

       Agnew argues, for issue preservation only, that the District Court erred in denying

his motion to reduce his sentence pursuant to § 3582(c)(2) because the FSA is

retroactively available to all defendants sentenced before its effective date, regardless of

career offender status. We disagree.

       To be eligible for a reduction in sentence under § 3582(c)(2), a defendant must

have been sentenced "based on a sentencing range that has subsequently been lowered by

the Sentencing Commission." 18 U.S.C. § 3582(c)(2); see also Mateo, 560 F.3d at 154.

Thus, relief pursuant to § 3582(c)(2) is available only if the Commission's amendments

have "the effect of lowering the sentencing range actually used at sentencing." United

States v. Thompson, 682 F.3d 285, 287 (3d Cir. 2012) (emphasis omitted) (quoting

Mateo, 560 F.3d at 155) (internal quotation marks omitted).

       The District Court did not abuse its discretion in denying Agnew's motion for a

reduction in his sentence. As Agnew concedes, Mateo and Thompson are controlling.

The crack cocaine amendments only affect the calculation of sentencing ranges under

§2D1.1(c), and "the lowering of the base offense level under § 2D1.1(c) has no effect on

the application of the career offender offense level required by § 4B1.1." Mateo, 560

F.3d at 155. Here, Agnew's Guidelines range was derived from § 4B1.1 because of his

status as a career offender. Accordingly, Agnew is ineligible for a reduction under


                                              5
§ 3582(c)(2). See id. at 156 ("Because the crack cocaine amendments do not lower [a

career offender's] sentencing range, the District Court did not err in denying [the] motion

to reduce sentence."); see also Thompson, 682 F.3d at 291 ("Mateo . . . remains binding

on this panel, and it requires that we affirm the District Court's denial of § 3582(c)(2)

relief.").

                                             IV.

        For the reasons set forth above, we will affirm the order of the District Court.




                                              6
