                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-1115
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                                    JASON CLARK,
                                                Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                       (D.C. Criminal No. 2-04-cr-00212-001)
                     District Judge: Honorable R. Barclay Surrick
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 18, 2012
               Before: SLOVITER, SMITH and COWEN, Circuit Judges

                             (Opinion filed: April 19, 2012 )
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      In 2005, appellant Jason Clark pleaded guilty to one count of possession with

intent to distribute 150 grams of crack cocaine (21 U.S.C. § 841(a)(1) and (b)(1)(A)), one

count of possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)), and one

count of possession of a firearm in furtherance of a drug-trafficking crime (18 U.S.C.
§ 924(c)(1)), charges attached to conduct from 2001. He was sentenced to an aggregate

term of 176 months of imprisonment. Before this Court is Clark’s appeal of his second

motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), 1 which was denied by

the District Court. For the following reasons, we will affirm.

       In his motion, Clark argued that both the guidelines applicable to his sentence and

the relevant mandatory minimum term of imprisonment have been lowered since he was

originally sentenced. He pointed to Freeman v. United States, ___ U.S. ___, 131 S. Ct.

2685 (2011), which addressed “whether defendants who enter into plea agreements that

recommend a particular sentence as a condition of the guilty plea may be eligible for

relief under § 3582(c)(2).” Id. at 2690. In opposing Clark’s motion, the Government

argued that Freeman did not apply, as the plea agreement was not pegged to a guidelines

range. The District Court agreed with this reasoning, finding Clark’s case to not “fit

within Freeman” because his sentence “was based solely on his plea agreement” and not

“the guidelines range.” Order n.2, ECF No. 60.

       We have jurisdiction under 28 U.S.C. § 1291. While the ultimate decision to

reduce a sentence under 18 U.S.C. § 3582(c)(2) is committed to the discretion of the

District Court, we exercise plenary review over the Court’s legal analysis. United States

v. Styer, 573 F.3d 151, 153 (3d Cir. 2009); United States v. Doe, 564 F.3d 305, 307 n.2

(3d Cir. 2009).

1
  Section 3582(c)(2) allows for the sentencing court to reduce the term of imprisonment if
a defendant was “sentenced to a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Commission.”
                                             2
       When Clark was originally sentenced, 18 U.S.C. § 924(c)(1)(A) (2006) required

that “any person who . . . in furtherance of [a drug trafficking] crime, possesses a

firearm” shall “in addition to the punishment provided for such . . . drug trafficking

crime” be sentenced to “a term of imprisonment of not less than 5 years.” Meanwhile, 21

U.S.C. § 841(b)(1) (2006) imposed a ten-year mandatory minimum for possession of

more than 50 grams of crack. Taken together, the mandatory minimum sentence Clark

could expect was a fifteen-year term. The plea agreement to which Clark was a party

reflected an understanding of such a sentence 2 (see Guilty Plea Agreement § 3(a), ECF

No. 40), and Clark’s counsel acknowledged that fifteen years was “the lowest sentence

which this Court may impose” (see Def.’s Sentencing Memo. 6, ECF No. 46).

       Several years later, Congress passed the Fair Sentencing Act of 2010, Pub. L. No.

111-220, 124 Stat. 2372 (2010). Section 2 of the Act amended the relevant subsection of

21 U.S.C. § 841, striking “50 grams” and inserting “280 grams.” See 21 U.S.C.

§ 841(b)(1)(A)(iii) (2012). The Act also led to the promulgation of sentencing guidelines

reflecting the new statutory scheme. See United States v. Dixon, 648 F.3d 195, 197–98

(3d Cir. 2011).

       We need not determine whether the modification of the guidelines could affect

relief under § 3582 and Freeman, because Clark was sentenced to a mandatory-minimum

statutory term that still applies to him. In United States v. Reevey, 631 F.3d 110 (3d Cir.


2
 The sentence was reduced somewhat due to prior-custody credits that are not relevant
here.
                                              3
2010), we held that the Fair Sentencing Act is not retroactive if both the offense and

initial sentencing occurred before its enactment, as is the case here. Id. at 114–15. A

defendant is not eligible for a reduction under § 3582(c)(2) if another statute or provision,

such as a statutory mandatory minimum, controls his sentence. See Doe, 564 F.3d at 312.

Thus, as Clark was sentenced to the minimum time possible under the old statutory

scheme, the fact that a guidelines range has changed in the interim is of no moment.

Finally, to the extent that Clark attacks the constitutionality of his sentence, 18 U.S.C.

§ 3582(c)(2) is not the proper vehicle for doing so.

       In sum, we agree with the District Court that it could not adjust Clark’s sentence

under § 3582. We will therefore affirm its judgment.




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