                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3715
                                       ___________

                            UNITED STATES OF AMERICA


                                             v.

                                  JESSE CROSBY,
                                                Appellant
                       ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                     (D.C. Criminal Action No. 1:10-cr-00086-001)
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   July 22, 2016
          Before: AMBRO, GREENAWAY, JR. and GARTH, Circuit Judges

                             (Opinion filed: August 16, 2016)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
      Jesse Crosby, a federal prisoner proceeding pro se, appeals the District Court’s

order denying his motion requesting a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2). For the reasons that follow, we will affirm.

                                            I.

      Crosby pleaded guilty to one count of distribution and possession with intent to

distribute cocaine base, in violation of 21 U.S.C. § 841. After reviewing the Presentence

Investigation Report (PSR), the District Court determined that Crosby qualified as a

career offender under the U.S. Sentencing Guidelines. Under that designation, Crosby’s

sentencing range was 151 months to 188 months. After considering the arguments of the

parties, Crosby’s allocution, and the sentencing factors under 18 U.S.C. § 3553(a), the

District Court determined that a 21-month downward variance was appropriate and

sentenced Crosby to 130 months in prison.

      In November 2014, Crosby filed a motion under 18 U.S.C. § 3582(c)(2). He

sought to have his sentence reduced based on Amendment 782 to the U.S. Sentencing

Guidelines, which lowered by two the base offense assigned to particular drug quantities.

The District Court denied Crosby’s motion, and he appeals.1 In his brief, Crosby claims


1
 The order denying Crosby’s motion to reduce or modify his sentence was entered on
October 14, 2015. He had 14 days, or until October 28, 2015, to file a notice of appeal.
See Fed. R. App. P. 4(b)(1)(A); United States v. Brown, 817 F.3d 486, 488-89 (6th Cir.
2016). Crosby, however, did not file his notice of appeal until November 3, 2015. See
Houston v. Lack, 487 U.S. 266, 276 (1988). Nevertheless, we decline to dismiss this
appeal as untimely because the time requirements of Federal Rule of Appellate Procedure
4(b) are not jurisdictional, see Gov’t of the V.I. v. Martinez, 620 F.3d 321, 328-29 (3d
Cir. 2010), and the Government has not sought to dismiss the appeal on that basis.
                                               2
that he was not sentenced based on the career offender guideline. The Government

disputes this claim and argues that Crosby is not entitled to a sentence reduction under

Amendment 782. We agree with the arguments put forward by the Government.

                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We generally review a district

court’s denial of a motion for reduction of sentence under § 3582(c)(2) for abuse of

discretion. United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). When a district

court concludes that a defendant is not eligible for relief under § 3582(c)(2), however, our

review is plenary. United States v. Weatherspoon, 696 F.3d 416, 421 (3d Cir. 2012).

                                            III.

       A district court generally cannot modify a term of imprisonment once it has been

imposed, but a defendant may be eligible for a reduction pursuant to 18 U.S.C. § 3582(c)

under certain circumstances. Section 3582(c) allows for a reduction if: (1) the sentence

was “based on a sentencing range that has subsequently been lowered by the Sentencing

Commission,” and (2) “a reduction is consistent with applicable policy statements issued

by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); United States v. Flemming,

723 F.3d 407, 410 (3d. Cir. 2013).

       Crosby fails to meet either of § 3582(c)(2)’s criteria. First, Crosby’s sentence was

based on the career offender guideline, not a sentencing range that has subsequently been

lowered. Specifically, the District Court varied from the low-end of the guideline range


                                             3
after determining Crosby was a career offender, and Crosby’s argument that he was not

sentenced based on the career offender guideline is belied by the record.

       Crosby also fails to meet § 3582(c)(2)’s second criterion, as a reduction in his

sentence would not be “consistent with the applicable policy statements issued by the

Sentencing Commission.” The relevant “applicable policy statement[]” makes clear that

a reduction in a sentence following a retroactive Guidelines amendment is inconsistent

with the Commission’s policy statements unless the amendment has “the effect of

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

Thus, the “question here is whether amendments to the… guidelines… have the effect of

lowering the ‘applicable guideline range’ of a defendant subject to the career offender

designation,” who received a downward departure or variance. Flemming, 723 F.3d at

410.

       The Sentencing Guidelines define “applicable guideline range” as “the guideline

range that corresponds to the offense level and criminal history category determined

pursuant to § 1B1.1(a), which is determined before consideration of any departure

provision in the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A). As

in Flemming, the “applicable guideline range” is “the range calculated pursuant to the

career offender designation of § 4B1.1, and not the range calculated after applying any

departure or variance.” 712 F.3d at 412. The fact that Crosby received a downward

variance from the career offender guideline does not change the applicable range under

which his sentence was calculated. See id.
                                             4
                                          IV.

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

Crosby’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).




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