                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-2550
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                                 TROY PONTON,
                                           Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           (E.D. Pa. Crim. No. 07-cr-00131)
                      District Judge: Honorable John P. Fullam
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 18, 2011
               Before: BARRY, JORDAN AND GARTH, Circuit Judges

                           (Opinion filed: January 19, 2011 )

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Troy Ponton, proceeding pro se, appeals an order of the United States District

Court for the Eastern District of Pennsylvania denying a motion to reduce his sentence

                                            1
based on a Department of Justice policy statement. We will affirm the judgment of the

District Court.

       A jury found Ponton guilty of conspiracy to distribute 50 grams or mo re of crack

cocaine and possession of 50 grams or more of crack cocaine with intent to distribute .

On March 6, 2008, the District Court sentenced Ponton to the statutory mandatory

minimum penalty of 120 months in prison. On July 15, 2009, we rejected Ponton’s

challenges on direct appeal to the weight and sufficiency of the evidence supporting his

convictions and affirmed the judgment of the District Court. United States v. Ponton,

337 F. App’x 179 (3d Cir. 2009) (unpublished decision).

       In April 2010, Ponton filed in District Court a pro se “motion for 1 to 1 ratio

pursuant to Department of Justice policy statement issued by U.S. Attorney General &

common law.” In his motion, Ponton asserted that the Attorney General had stated that

the penalties for crack cocaine offenses unconstitutionally discriminate against minorities

and that the Attorney General would not oppose motions seeking relief from an

unconstitutional sentence for such an offense. Ponton asked that his sentence be reduced

to equal the sentence that would have been imposed if his offenses involved powder

cocaine. The District Court denied the motion, noting that the Department of Justice

policy statement does not provide a basis for a retroactive sentence reduction. This

appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review over

                                             2
questions of law is plenary. United States v. Washington, 549 F.3d 905, 911 (3d Cir.

2008).



         The District Court did not err in denying Ponton’s motion for a reduction of

sentence. Once a sentence becomes final, the District Court’s power to reduce a sentence

is limited. Washington, 549 F.3d at 915-16. A sentence may be modified pursuant to 18

U.S.C. § 3582(c) upon motion by the Bureau of Prisons if certain requirements are met,

where a statute or Rule 35 expressly permits modification, or where a retroactive

amendment to the Sentencing Guidelines lowers the applicable sentencing range. Id. at

915 n.11. Under Federal Rule of Criminal Procedure 35(a), a sentence may be modified

if a motion is filed within seven days and establishes arithmetical, technical, or clear

error. Id. at 916. Neither Rule 35(a) nor § 3582 apply here. 1 Rather, Ponton seeks a

reduction of sentence based on a Department of Justice statement criticizing the disparity

in penalties between crack and powder cocaine, which the District Court properly held

does not provide a basis for relief.

         To the extent Ponton challenges the constitutionality of his sentence, his motion

could have been construed as seeking relief pursuant to 28 U.S.C. § 2255.2 Such a


         1
           Ponton was sentenced after the effective date of the 2007 amendments to the
         Sentencing Guidelines for crack cocaine offenses and thus he does not seek a
         sentence reduction pursuant to those amendments.
         2
           The District Court arguably should have provided Ponton notice under United
         States v. Miller, 197 F.3d 644 (3d Cir. 1999), before adjudicating his motion.
                                               3
motion, however, would have been unsuccessful. Ponton did not challenge his sentence

on direct appeal. Thus, his claim would not be cognizable under § 2255 absent a showing

of cause for the failure to raise his argument and prejudice. United States v. Essig, 10

F.3d 968, 979 (3d Cir. 1993). Even if cognizable, Ponton’s constitutional claim lacks

merit. We have previously rejected the claim that the distinction between cocaine base

and cocaine in the federal sentencing scheme violates the right to equal protection.

United States v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992) (per curiam). 3

       Finally, Ponton argues in his brief that the District Court erred in asking the

Federal Defender’s Office to review his motion. The Federal Defender’s Office informed

the District Court that Ponton was not entitled to relief. Because the Federal Defender’s

Office was correct, Ponton was not prejudiced by the District Court’s request.

       Accordingly, we will affirm the or der of the District Court.




       Ponton, however, was not prejudiced by any failure to provide such notice because
       his motion was not recharacterized as a § 2255 motion and he was not precluded
       from filing a § 2255 motion before the expiration of the statute of limitations.
       3
         In addition, although Congress has enacted The Fair Sentencing Act of 2010,
       Pub. L. 111-220, 124 Stat. 2372, which raised the amount of crack cocaine
       necessary to trigger a ten-year mandatory minimum sentence, the statute does not
       apply here because the Act became effective on August 3, 2010, and Congress did
       not make the Act retroactive. See United States v. Gomes, 621 F.3d 1343, 1346
       (11th Cir. 2010) (per curiam) (involving direct appeal); United States v. Carradine,
       621 F.3d 575 (6th Cir. 2010) (same). Our Court reached that conclusion while this
       case was on appeal. United States v. Reevey, ___ F.3d ___, ___, 2010 WL
       5078239, at *3 (3d Cir. 2010).
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