BLD-300                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-1104
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                               JEREMY RODRIGUEZ,
                                             Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 2-03-cr-00271-001)
                        District Judge: Honorable Anita B. Brody
                      ____________________________________

                   Submitted for Possible Summary Action Pursuant to
                        Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 23, 2016

              Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges

                               (Opinion filed: July 6, 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.
       Jeremy Rodriguez, 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 summarily affirm.

                                             I.

       In 2004, Rodriguez pleaded guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g); possessing a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c); and three Title 21 drug offenses. After

reviewing the Presentence Investigation Report (PSR), the District Court determined that

Rodriguez qualified as both a career offender, see U.S.S.G. § 4B1.1, and an armed career

criminal, see 18 U.S.C. § 924(e), based on his prior drug convictions. Under the career

offender designation, which determined Rodriguez’s range under the U.S. Sentencing

Guidelines, he faced a term of 262 months to 327 months. After considering the

arguments of the parties, Rodriguez’s allocution, and the sentencing factors under 18

U.S.C. § 3553(a), the District Court determined a variance was appropriate and sentenced

Rodriguez to a mandatory minimum of 180 months on the felon-in-possession count

followed by a mandatory minimum of 60 months on the § 924(c) charge, for a total

sentence of 240 months. The District Court also sentenced Rodriguez to 180 months on

each of the three drug offenses, with those sentences to run concurrently with the one for

the felon-in-possession conviction.

       In February 2015, Rodriguez 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
                                             2
Guidelines, which lowered by two the base offense assigned to particular drug quantities.

In a brief order, the District Court denied the motion because Rodriguez’s sentence was

determined by the applicable mandatory minimums. Rodriguez then sought

reconsideration, and the District Court denied that motion. Rodriguez appeals from both

orders.

                                              II.

          We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s interpretation of the Sentencing Guidelines and otherwise

review the denial of relief for abuse of discretion. United States v. Mateo, 560 F.3d 152,

154 (3d Cir. 2009). We review the denial of a motion for reconsideration for abuse of

discretion. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015). We may summarily

affirm the District Court’s order if the appeal presents no substantial question. See 3d

Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

                                              III.

          The District Court did not err in denying Rodriguez § 3582(c)(2) relief because

Amendment 782 does not lower his sentencing range. A district court generally cannot

“modify a term of imprisonment once it has been imposed” unless a defendant is eligible

for a reduction of sentence pursuant to § 3582(c). 18 U.S.C. § 3582(c). Section

3582(c)(2) 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.”
                                               3
18 U.S.C. § 3582(c)(2); United States v. Flemming, 723 F.3d 407, 410 (3d Cir. 2013). A

reduction in sentence is not consistent with the relevant policy statement unless the

amendment has “the effect of lowering the defendant’s applicable guideline range.”

U.S.S.G. § 1B1.10(a)(2)(B).

       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).

Here, 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.” Flemming, 723 F.3d at 412. Amendment 782, which alters the

offense levels for drug crimes but does not affect the offense levels for career offenders,

would not lower Rodriguez’s applicable Guidelines range, and it would thus be contrary

to the applicable policy statement to reduce Rodriguez’s sentence. Furthermore, as the

District Court determined, a sentence reduction under § 3582(c)(2) is also precluded by

the applicable mandatory minimums on the two firearms charges. Accordingly, the

District Court did not err in denying Rodriguez’s motion pursuant to § 3582(c)(2).1


1
  In a motion before the District Court, Rodriguez asked the District Court to consider
whether he was eligible for relief under Johnson v. United States, 135 S.Ct. 2551 (2015).
The District Court declined to address the issue, and Rodriguez has now attached his
motion to a filing in this Court. The District Court did not err because Johnson is not a
proper basis for relief under § 3582(c)(2). In any event, Rodriguez appears ineligible for
relief under Johnson. In that case, the Supreme Court held that part of the Armed Career
                                              4
                                            IV.

      For the foregoing reasons, we will summarily affirm the District Court’s orders

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

denying reconsideration of that decision.




Criminal Act’s definition of “violent felony” violated due process because it was
unconstitutionally vague. Id. at 2562-63; see 18 U.S.C. § 924(e)(2)(B). However,
Rodriguez was sentenced based on three prior serious drug offenses, not “violent
felonies.” See 18 U.S.C. § 924(e)(2)(A). That provision of § 924(e) was not affected by
Johnson.
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