                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-1543
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                                  DEPREME T. SAPP
                                 a/k/a Dupreme T. Sapp

                             Depreme T. Sapp, Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                             for the District of Delaware
                    (D.C. Criminal Action No. 1-98-cr-00031-001)
                           District Judge: Sue L. Robinson
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 22, 2012

  Before: SCIRICA, GREENAWAY, JR., AND VAN ANTWERPEN, Circuit Judges

                            (Opinion filed: August 22, 2012)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Depreme T. Sapp, proceeding pro se, appeals from the District Court’s order

denying his motion for a sentence reduction. For the reasons that follow, we will affirm.
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I.     Background

       In 1998, Sapp pleaded guilty to conspiracy to possess with intent to distribute

cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1),(b)(1)(A) and 846. In

light of his criminal history, he was sentenced as a career offender under § 4B1.1 of the

Sentencing Guidelines. As a career offender, Sapp had a criminal history category of VI,

and after an adjustment based on acceptance of responsibility, he had a total offense level

of 34, higher than his offense level would have been had it been based on drug quantity.

See U.S.S.G. § 4B1.1(b) (“if the offense level for a career offender . . . is greater than the

offense level otherwise applicable, the offense level [for a career offender] shall apply.”).

The District Court sentenced him to a term of 262 months of imprisonment, within the

guideline range of 262-to-327 months. See U.S.S.G. Sentencing Table, Ch. 5, Pt. A. 1

       In 2010, Sapp filed a pro se motion for reduction of sentence pursuant to 18

U.S.C. § 3582(c)(2). He argued that his sentence should be reduced based on Spears v.

United States, 555 U.S. 261 (2009), and Amendment 750 to the Sentencing Guidelines. 2

An Assistant Federal Public Defender was then appointed to determine whether Sapp


       1
        In 2008, Sapp filed a pro se motion for reduction of sentence pursuant to 18
U.S.C. § 3582(c)(2), asserting that Amendment 706 to the Sentencing Guidelines reduced
his guideline range. The District Court denied the motion.
       2
        Sapp requested a reduction in sentence based on the Fair Sentencing Act of 2010.
Amendment 750, which took effect on November 1, 2011, re-promulgated as permanent
a temporary amendment that implemented the Fair Sentencing Act of 2010. See U.S.
Sentencing Guidelines Manual app. C, vol. III, Amend. 750.


                                              2
might qualify for a reduction of sentence. Sapp’s appointed counsel determined,

however, that Sapp was not eligible for a reduction of sentence and filed a motion to

withdraw as counsel. The District Court granted counsel’s motion to withdraw and

denied the motion for reduction of sentence. Sapp timely appealed. In his brief in

support of his appeal, Sapp argues that he should be resentenced based on Spears and

Amendment 750, and he contends that U.S.S.G. § 1B1.10 is unconstitutional.

II.    Discussion

       We have jurisdiction pursuant to 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). We review a district court's ultimate decision to deny a motion

pursuant to § 3582(c) for abuse of discretion. Id.

       To be eligible for a reduction in sentence, a defendant must have “been sentenced

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

lowered by the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2). Thus, a reduction

in sentence pursuant to § 3582(c)(2) is available only if a Guidelines amendment has “the

effect of lowering the sentencing range actually used at sentencing.” United States v.

Thompson, 682 F.3d 285, 287 (3d Cir. 2012) (quoting Mateo, 560 F.3d at 155) (emphasis

in original). Amendment 750, which lowered the base offense levels for certain

quantities of crack cocaine in U.S.S.G. § 2D1.1, would not lower Sapp’s base level and

subsequent sentencing range. This is so because Sapp’s base level and sentencing range

were actually based on his career offender status, not on his crack cocaine quantity levels.
                                             3
See U.S.S.G. § 4B1.1(b); Thompson, 682 F.3d at 287.

       Sapp is also not eligible for a sentence reduction under Spears. The Court in

Spears concluded “that district courts are entitled to reject and vary categorically from the

crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” 555

U.S. at 265-66. However, employing a lower crack-to-powder ratio under Spears would

have no effect on Sapp’s base offense level or sentencing range, as he was sentenced

based on the career offender guideline, not via the guidelines based on drug quantity.

Moreover, even if Sapp qualified for a sentence reduction under § 3582(c)(2), he would

not be entitled to a full-scale resentencing where the court might depart pursuant to

Spears. See Dillon v. United States, 130 S. Ct. 2683, 2694 (2010) (emphasizing the

narrowness of the § 3582(c)(2) proceeding). Accordingly, the District Court did not

abuse its discretion in determining that Sapp could not benefit from Spears. See

Thompson, 682 F.3d at 288.

       Finally, Sapp argues that U.S.S.G. § 1B1.10 is unconstitutional because its

mandatory provisions violate Article III of the United States Constitution by preventing a

court from exercising its discretion under 18 U.S.C. § 3582(c)(2). As the Government

observes, Sapp did not make this argument in the District Court, so our review might be

limited to plain-error review. See, e.g., United States v. Vazquez, 271 F.3d 93, 99 (3d

Cir. 2001) (en banc). But there is no error at all, plain or otherwise.

       Sapp takes particular issue with the following section of § 1B1.10:

              In determining whether, and to what extent, a reduction in the
                                              4
              defendant's term of imprisonment under 18 U.S.C. 3582(c)(2)
              and this policy statement is warranted, the court shall
              determine the amended guideline range that would have been
              applicable to the defendant if the amendment(s) to the
              guidelines listed in subsection (c) had been in effect at the
              time the defendant was sentenced. In making such
              determination, the court shall substitute only the amendments
              listed in subsection (c) for the corresponding guideline
              provisions that were applied when the defendant was
              sentenced and shall leave all other guideline application
              decisions unaffected.

U.S.S.G. § 1B1.10(b)(1) (emphasis added). Sapp contends that the use of “shall” in the

policy statement prevents a court from exercising the discretion provided to it by

Congress to reduce a sentence under 18 U.S.C. § 3582(c)(2). We perceive no flouting of

Congressional intent, however, as the language of § 3582(c)(2) itself explicitly cabins a

court’s discretion by requiring it to follow the “applicable policy statements” of the

Sentencing Commission. Furthermore, to the extent that Sapp’s argument is that

Congress may not limit a sentencing court’s ability to exercise its own discretion in any

way and at any point, even long after the original sentence becomes final, he recognizes,

as he must, that Supreme Court precedent holds otherwise. See Notice of Appeal, 4-5;

see also Dillon, 130 S. Ct. at 2692 (“proceedings under § 3582(c)(2) do not implicate the

Sixth Amendment right to have essential facts found by a jury”).

       For the reasons stated above, we will affirm the District Court’s order.




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