                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                       No. 12-1694
                                      ____________

                              UNITED STATES OF AMERICA

                                            v.

                                    BERNARD JONES
                                     a/k/a " Butter ",

                                                   Appellant
                                      ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 01-cr-00401)
                     District Judge: Honorable Edwin M. Kosik
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 23, 2012

     Before: HARDIMAN, GREENAWAY, JR., and VANASKIE, Circuit Judges.

                            (Opinion Filed: November 14, 2012)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

HARDIMAN, Circuit Judge.

      Bernard Jones appeals the District Court’s order denying his motion to reduce

sentence. We will affirm.

                                            I
       Because we write for the parties, who are well acquainted with the case, we recite

only the facts and procedural history essential to its disposition.

       In 2004, Bernard Jones was found guilty of various crack cocaine offenses. Under

the then-mandatory United States Sentencing Guidelines (Guidelines), Jones’s initial

offense level of 42 corresponded to an imprisonment term of 360 months to life. He was

sentenced to 360 months’ imprisonment.

       In 2005, we vacated and remanded Jones’s sentence in light of the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005), which held that the

Guidelines were merely advisory. United States v. Jones, 142 F. App’x 653, 654 (3d Cir.

2005). The District Court then imposed a new below-Guidelines sentence of 240 months’

imprisonment based on various mitigating circumstances. Jones appealed that sentence

and we affirmed. United States v. Jones, 222 F. App’x 113, 114–15 (3d Cir. 2007).

       In 2007, the Sentencing Commission retroactively amended the Guidelines, which

reduced the bottom of Jones’s sentencing range from 360 months to 292 months. Jones

requested a sentence reduction under 18 U.S.C. § 3582(c) and the District Court granted

him a proportional sentence reduction from 240 months to 195 months.

       In 2011, the Sentencing Commission again retroactively amended the Guidelines,

which reduced the bottom of Jones’s sentencing range from 292 months to 235 months.

This time, however, the Sentencing Commission also adopted a policy statement

providing that “the court shall not reduce the defendant’s term of imprisonment . . . to a

term that is less than the minimum of the amended guideline range.” USSG §
                                              2
1B1.10(b)(2)(A). Jones filed another motion for a sentence reduction under § 3582,

which was denied on the grounds that Jones’s sentence was already “below the

recalculated range.” Jones now appeals the order of the District Court denying that

motion.

                                             II

       The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3582 and we have

jurisdiction over Jones’s appeal under 28 U.S.C. § 1291. Because the District Court

based its decision on the legal conclusion that Jones was not eligible for a sentence

reduction because his sentence was already below the recalculated Guidelines range, our

review is plenary. See United States v. Sanchez, 562 F.3d 275, 277–78 (3d Cir. 2009),

overruled on other grounds by Freeman v. United States, 131 S. Ct. 2685 (2011).

                                             III

       Under 18 U.S.C. § 3582(c)(2), “in the case of a defendant who has been sentenced

to a term of imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission . . . the court may reduce the term of

imprisonment . . . if such a reduction is consistent with the applicable policy statements

issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

       In this case, it is undisputed that Jones’s sentence was 195 months, while the

“minimum of the amended guideline range” is 235 months. Therefore, by the terms of §

3582 and the Sentencing Commission’s 2011 policy statement, Jones is not eligible for

another sentence reduction.
                                             3
       In an attempt to avoid this result, Jones argues that the Sentencing Commission’s

policy statement is invalid because it exceeds the Sentencing Commission’s authority,

and because it violates separation of powers principles. We rejected these arguments in a

recent precedential opinion of the Court. United States v. Berberena, Nos. 11–4540, 12–

1103, 2012 WL 3937666, at *3–10 (3d Cir. Sept. 11, 2012). In a letter submitted

pursuant to Fed. R. App. P. 28(j) Jones concedes, as he must, that his “appeal raises the

same issues/arguments that the Court addressed in Berberena.” Accordingly, we will

affirm the order of the District Court.




                                             4
