                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                   No. 11-4541
                                  ____________

                       UNITED STATES OF AMERICA

                                         v.

                            BRUCE LEVETT WAYNE
                                also known as
                                BIG DADDY
                                also known as
                                 BAT MAN

                                 Bruce Levett Wayne,
                                         Appellant


                                   ___________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                    (D.C. Criminal No. 1-94-cr-00017-001)
                        District Judge: Maurice B. Cohill
                                   ___________

                  Submitted Under Third Circuit L.A.R. 34.1(a)
                              October 25, 2012

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

                           (Opinion Filed: April 3, 2013)
                                  ___________

                                    OPINION
                                   ___________

VANASKIE, Circuit Judge.
         Bruce Levett Wayne appeals from the District Court’s denial of a reduction in his

262-month prison term. Wayne argues that the District Court should have reduced his

criminal history category from level IV to level III by giving retroactive effect to United

States Sentencing Guidelines Amendment 742. This amendment eliminated from the

criminal history scoring process one or two points that had been awarded when the

offense of conviction was committed within two years of release from imprisonment on a

prior conviction. 1      Because the United States Sentencing Commission did not make

Amendment 742 retroactive and Wayne’s challenge to the validity of the refusal to make

Amendment 742 retroactive is waived as well as meritless, we will affirm the District

Court.

                                                        I.

         We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

         In August of 1994, Wayne was found guilty of conspiracy to distribute crack

cocaine in violation of 21 U.S.C. § 846. Based upon the amount of crack cocaine

attributable to Wayne (762.8 grams) and his leadership role in the conspiracy, Wayne’s

offense level was set at 40. Wayne was assigned seven criminal history points, which

included one point pursuant to U.S.S.G. § 4A1.1(e), because he engaged in the crack

conspiracy less than two years following his release from imprisonment on an earlier

drug trafficking conviction. With seven criminal history points, Wayne fell within

         1
         These points in the criminal history scoring process are sometimes referred to as “recency points.” See
Sentencing Guidelines for United States Courts, 75 Fed. Reg. 27,388, 27,393 (May 14, 2010).


                                                        2
criminal history category IV. 1 Wayne’s criminal history category IV and offense level 40

yielded a sentencing guideline range of 360 months to life. On November 1, 1994,

Wayne was sentenced to 360 months in prison.

      On July 2, 2008, Wayne motioned for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2) and the Sentencing Guideline Amendments that retroactively reduced by

two the offense level for crack cocaine offenders. See U.S.S.G. app. C, amend. 706

(2011) (effective Nov. 1, 2007), and U.S.S.G. app. C., amend 713 (2011) (effective

March 3, 2008). The District Court granted the motion, reducing Wayne’s sentence to

324 months’ imprisonment.

      On December 12, 2011, two separate sentence reduction motions were filed on

Wayne’s behalf by different lawyers. One motion sought a reduction in Wayne’s prison

term based upon Sentencing Guideline Amendment 750, which further reduced the

offense levels applicable to crack cocaine offenders and which the Sentencing

Commission did make retroactive. See U.S.S.G. app. C, amend. 750 (2011) (effective

Nov. 1, 2011). This motion was granted, and Wayne’s prison term was reduced to the

bottom of the revised guidelines range of 262 to 327 months.

      The other motion was based upon Amendments 742 and 750. As noted above,

Amendment 742 eliminated the “recency points” that had been required by U.S.S.G. §

4A1.1(e). Amendment 742 was effective November 1, 2010, but was not made

retroactive. United States v. Isaac, 655 F.3d 148, 158 (3d Cir. 2011). Had this point

been eliminated from Wayne’s criminal history scoring, his criminal history category

      1
          Had he been assigned six criminal history points, Wayne would have been in criminal history category III.

                                                        3
would have dropped from level IV to level III, resulting in a guideline range of 235 to

292 months. Wayne requested that his sentence be reduced to 235 months. Concluding

that it lacked jurisdiction to apply Amendment 742 retroactively, the District Court

denied the second sentence reduction motion. This appeal followed.

                                            II.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                            A.

       The first question presented in this appeal is whether the District Court had the

authority to apply Amendment 742 to reduce Wayne’s sentence. We review the question

of the District Court’s jurisdiction to consider Wayne’s motion for a sentence reduction

under Amendment 742 de novo. See United States v. Manzella, 475 F.3d 152, 156 (3d

Cir. 2007).

       Generally, a final judgment of conviction that includes a term of imprisonment

may not be modified by a district court once it has been imposed. See United States v.

Flemming, 617 F.3d 252, 256-57 (3d Cir. 2010). Congress, however, provided a

mechanism for reducing a sentence “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.” 18 U.S.C. § 3582(c)(2). Significantly, “a reduction

under [18 U.S.C.] § 3582(c) is not authorized unless an amendment reducing the

applicable guidelines range is among those listed in [U.S.S.G.] § 1B1.10(c).” United

States v. Wise, 515 F.3d 207, 221 (3d Cir. 2008). Indeed, § 1B1.10(b)(1) specifies that

                                             4
the Court shall substitute only the amendments that are designated as retroactively

applicable by being listed in U.S.S.G. § 1B1.10(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).

       Amendment 742 is not among the amendments listed in U.S.S.G. § 1B1.10(c).

Accordingly, the District Court did not have the authority to apply Amendment 742 to

Wayne’s guideline calculation. Isaac, 655 F.3d at 158. The fact that Amendment 750

applied retroactively did not open the door for retroactive application of other guideline

amendments. See Dillon v. United States, 130 S. Ct. 2683, 2694 (2010) (aspects of a

sentence unaffected by an amendment that allows for retroactive adjustment of the

guidelines range “are outside the scope of the proceeding authorized by § 3582(c)(2)”).

Thus, Wayne was not eligible for a reduction in his sentence based on Amendment 742.

                                                B.

       Wayne argues, for the first time on appeal, that the Commission’s decision not to

make Amendment 742 retroactive violates the Administrative Procedure Act (“APA”), 5

U.S.C. §§ 551 et seq., and the Sentencing Reform Act. Specifically, he contends that the

failure to make the elimination of recency points retroactive was arbitrary and capricious

because recency points were found to only minimally improve the “predictive ability” of

the criminal history score. (App. 27.) Wayne’s APA argument is both waived and

meritless.

       “It is well established that failure to raise an issue in the district court constitutes a

waiver of the argument.” Brenner v. Local 514, United Bhd. of Carpenters & Joiners of

                                               5
Am., 927 F.2d 1283, 1298 (3d Cir. 1991). Thus, Wayne is precluded from presenting his

APA claim for the first time in this Court.

       Even if not waived, the APA claim lacks merit because the policy decision of

whether to make a guideline amendment retroactive is not subject to the APA. See

United States v. Berberena, 694 F.3d 514, 526-27 (3d Cir. 2012) (APA notice and

comment provisions do not apply to the Sentencing Commission’s policy statements).

Indeed, “Congress decided that the Sentencing Commission would not be an ‘agency’

under the APA when it established the Commission as an independent entity in the

judicial branch.” Wash. Legal Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446, 1450

(D.C. Cir. 1994). Accordingly, Wayne’s invocation of the APA is unavailing.

                                              III.

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




                                               6
