CLD-236                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-2141
                                      ___________

                           UNITED STATES OF AMERICA,

                                            v.

                          CHARLES LEWIS MATTHEWS,
                                                    Appellant
                      ____________________________________

                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                         (D.C. CriminalNo. 08-cr-00124-003)
                        District Judge: Honorable Yvette Kane
                      ____________________________________

          Submitted for Possible Dismissal Due to a Jurisdictional Defect or
     Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    July 26, 2012

            Before: RENDELL, HARDIMAN and COWEN, Circuit Judges

                            (Opinion filed: August 17, 2012)
                                       _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM

      Charles Lewis Matthews, a federal prisoner proceeding pro se, appeals an order of

the United States District Court for the Middle District of Pennsylvania denying his

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motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). Because this

appeal presents no substantial question, we will summarily affirm the judgment of the

District Court.

       In April 2009, Matthews pleaded guilty to one count of a superseding information

charging him with distribution and possession with intent to distribute an undisclosed

quantity of cocaine base. 21 U.S.C. § 841(a)(1). The Plea Agreement noted that the

maximum penalty was 20 years of imprisonment. The Presentence Investigation Report

(“PSR”) indicated that Matthews was responsible for 353 grams of crack cocaine. Under

the Sentencing Guidelines then in effect, that drug quantity (between 150 and 500 grams

of cocaine base) resulted in a base offense level of 32. U.S.S.G. § 2D1.1. That level was

reduced by two points for acceptance of responsibility. U.S.S.G. § 3E1.1. But, because

Matthews had two prior felony convictions for controlled substance offenses, he was

classified as a career offender. U.S.S.G. § 4B1.1(a). As a career offender, Matthews‟

sentencing range was determined based on the table in U.S.S.G. § 4B1.1(b). United

States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). That table provides that a career

offender who faces a maximum penalty of 20 years in prison has an offense level of 32.

U.S.S.G. § 4B1.1. Factoring in the same two-level downward adjustment under U.S.S.G.

§ 3E1.1, Matthews‟ total offense level was 30. With a mandatory Criminal History

category of VI, U.S.S.G. § 4B1.1(b), Matthews faced a Guidelines range of 168 to 210

months of imprisonment. In a Judgment entered July 17, 2009, the District Court

sentenced Matthews to 210 months of imprisonment, to be followed by three years of
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supervised release.

         We affirmed on direct appeal. United States v. Matthews, 373 F. App‟x 303 (3d

Cir. 2010). Matthews next filed a motion pursuant to 28 U.S.C. § 2255, raising claims of

ineffective assistance of counsel. The District Court denied the § 2255 motion on the

merits. United States v. Matthews, No. 10-cv-1549, 2011 WL 183979 (M.D. Pa. Jan. 18,

2011).

         In January 2012, Matthews filed a § 3582(c)(2) motion to reduce his sentence in

light of Amendment 750 to the Sentencing Guidelines.1 The District Court denied the

motion and Matthews appealed.2 We have jurisdiction under 28 U.S.C. § 1291. Our

review of a district court‟s interpretation of the Guidelines is de novo, United States v.

Sanchez, 562 F.3d 275, 277-78 (3d Cir. 2009), and we review a district court‟s ultimate

disposition of a § 3582(c)(2) motion for abuse of discretion. Mateo, 560 F.3d at 154 &

n.2.

1
 The District Court liberally construed Matthews‟ claims as being brought pursuant to
Amendment 750, even though he did not cite that Amendment in his § 3582 motion.
Haines v. Kerner, 404 U.S. 519, 520 (1972). Instead, Matthews relied on Amendment
706 to the Sentencing Guidelines, which “decrease[d] by two levels the base offense level
for crack cocaine offenses.” United States v. Wise, 515 F.3d 207, 219 (3d Cir. 2008).
Amendment 706 became effective on November 1, 2007, several years before Matthews‟
July 2009 sentencing. Under the plain language of § 3582, Matthews is ineligible for a
sentence reduction based on Amendment 706. § 3582(c)(2) (permitting a court to lower a
sentence where the applicable sentencing range was “subsequently . . . lowered by the
Sentencing Commission.” (emphasis added)).
2
 Although Matthews‟ notice of appeal was filed more than 14 days after the District
Court entered its order denying the § 3582(c)(2) motion, see Fed. R. App. P. 4(b), the
Government has not sought to enforce the time limitation. Virgin Islands v. Martinez,
620 F.3d 321, 328-29 (3d Cir. 2010).
                                              3
       A district court may reduce a term of imprisonment under § 3582(c)(2) “only

when two elements are satisfied: First, the defendant must have been „sentenced to a

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

the Sentencing Commission;‟ and second, the sentence reduction must be „consistent with

applicable policy statements issued by the Sentencing Commission.‟” United States v.

Doe, 564 F.3d 305, 309 (3d Cir. 2009). The applicable policy statement provides that a

sentence reduction is not authorized if the retroactive amendment “does not have the

effect of lowering the defendant‟s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2).

In this regard, “the policy statement and § 3582(c)(2) are complementary.” Doe, 564

F.3d at 310.

       Amendment 750, which took effect on November 1, 2011, lowered the base

offense levels for crack cocaine quantities listed in U.S.S.G. § 2D1.1(c), to conform to

the Fair Sentencing Act of 2010 (“FSA”).3 In Mateo, we held that career offenders

sentenced under § 4B1.1 are ineligible for § 3582(c)(2) relief in light of Amendment 706,

which, like Amendment 750, lowered the base offense levels for certain quantities of


3
  The FSA amended 21 U.S.C. § 841(b)(1) by, among other things, raising the amount of
crack cocaine that triggered mandatory minimum prison sentences. See Dorsey v. United
States, -- U.S. --, 132 S. Ct. 2321, 2328-29 (2012). In response to the FSA, the
Sentencing Commission promulgated a temporary amendment that revised the crack
cocaine quantity levels in U.S.S.G. § 2D1.1. Amendment 750 re-promulgated as
permanent that temporary amendment. Id. at 2329. Although the Commission decided
that Amendment 750 should be applied retroactively, see United States v. Curet, 670 F.3d
296, 309 (1st Cir. 2012), the FSA itself is not retroactively applicable, where, as here,
both the offense and sentencing occurred before its enactment. United States v. Reevey,
631 F.3d 110, 114-15 (3d Cir. 2010).
                                             4
crack cocaine under U.S.S.G. § 2D1.1(c). Mateo, 560 F.3d at 154-55. This is because

“Amendment 706 only affects calculation 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.” Id. at 155. Similarly, because Matthews was

sentenced as a career offender under § 4B1.1, Amendment 750 does not affect his

applicable sentencing range. Cf. United States v. Lawson, -- F.3d --, 2012 WL 2866265,

at *3 (11th Cir. July 13, 2012) (holding that Amendment 750 did not lower sentencing

range for defendant whose “offense level and guideline range . . . were based on § 4B1.1,

not § 2D1.1, because he was a career offender.”). Thus, we conclude that Matthews is

not eligible for a reduction in his sentence pursuant to Amendment 750, and the District

Court did not err in denying his § 3582 motion to reduce his sentence.

       We also reject Matthews‟ reliance on Freeman v. United States, -- U.S. --, 131 S.

Ct. 2685 (2011). In that case, a plurality of the Supreme Court held that a district court

may grant a § 3582(c)(2) reduction based on subsequently amended Guidelines where the

defendant entered a guilty plea agreement under Federal Rule of Criminal Procedure

11(c)(1)(C), which allows the parties to bind the district court to a pre-agreed sentence if

the court accepts the plea. Id. at 2690. Here, by contrast, Matthews‟ guilty plea did not

include a pre-agreed sentence pursuant to Rule 11(c)(1)(C). See Lawson, 2012 WL

2866265, at *2 (noting that Freeman did not “address[] defendants who were assigned a

base offense level under one guideline section, but who were ultimately assigned a total

offense level and guideline range under § 4B1.1.”). Moreover, we recently held that
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“Mateo remains good law” following Freeman. United States v. Thompson, 682 F.3d

285, 286 (3d Cir. 2012). Finally, although Matthews appears to rely on United States v.

Booker, 543 U.S. 220 (2005), that case does not provide a basis for a sentence reduction

not otherwise permitted under § 3582(c). Mateo, 560 F.3d at 155-56.

      For the foregoing reasons, we will summarily affirm the judgment of the District

Court. See Third Circuit L.A.R. 27.4 and I.O.P. 10.6.




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