                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-3337
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                                DUJANN LEWIS,
                                            Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                    (D.C. Criminal Action No. 2:03-cr-00216-001)
                     District Judge: Honorable R. Barclay Surrick
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 23, 2013

               Before: AMBRO, HARDIMAN and ROTH, Circuit Judges

                            (Opinion filed: August 13, 2013)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      DuJann Lewis, a federal inmate currently incarcerated at FCI McKean in

Bradford, Pennsylvania and proceeding pro se, appeals from an order of the United States

District Court for the Eastern District of Pennsylvania denying his motion for a reduction
of sentence pursuant to 18 U.S.C. § 3582(c)(2). For the following reasons, we will affirm

the judgment of the District Court.

                                             I.

       In 2005, following a jury trial, Lewis was found guilty of one count of conspiracy

to distribute more than fifty grams of cocaine base, one count of possession with the

intent to distribute more than fifty grams of cocaine base, one count of possession of

marijuana with the intent to distribute, and one count of possessing a firearm in

furtherance of a drug trafficking crime. The Presentence Investigation Report (“PSR”)

indicated that Lewis was responsible for ninety-eight grams of cocaine base. Under the

Sentencing Guidelines then in effect, that drug quantity resulted in a base offense level of

32. However, Lewis received a two-level increase for reckless endangerment during

flight, resulting in an adjusted offense level of 34. The PSR placed Lewis in Criminal

History Category I, and his Guidelines range on the drug counts called for 151 to 188

months’ incarceration. With the addition of the five-year mandatory penalty for the

firearm offense, Lewis faced a Guidelines range of 211 to 248 months’ incarceration. At

sentencing, the District Court varied from the Guidelines range and imposed a total

sentence of 180 months’ incarceration. This sentence combined the mandatory minimum

penalty of 120 months for the cocaine base convictions and the mandatory penalty of 60

months for the firearms offense.

       We affirmed on direct appeal. United States v. Lewis, 261 F. App’x 384 (3d Cir.

2008). In 2008, Lewis filed a motion to vacate, set aside, or correct his sentence pursuant
                                             2
to 28 U.S.C. § 2255. The District Court denied his motion, and Lewis did not appeal. He

then filed a pro se motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2)

and the Fair Sentencing Act (“FSA”) of 2010, arguing that the FSA retroactively applied

to defendants who were sentenced before the FSA’s effective date and that this

retroactive application lowered his mandatory minimum penalty from 120 months to 60

months. On November 18, 2011, the District Court denied Lewis’ motion.

       On August 1, 2012, Lewis filed a second motion for reduction of sentence

pursuant to 18 U.S.C. § 3582(c)(2). He argued that the Supreme Court’s recent decision

in Dorsey v. United States, 132 S. Ct. 2321 (2012), which held that the FSA’s provisions

apply to defendants who committed their offenses before the FSA’s effective date but are

sentenced afterwards, supports his position that the FSA retroactively applies to his case.

On August 8, 2012, the District Court denied Lewis’ motion, noting that Dorsey did not

alter the conclusion that the FSA does not apply retroactively to defendants like Lewis

who were sentenced before its passage. Lewis timely filed this appeal.

                                             II.

       We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We review the District

Court’s ultimate decision to deny Lewis’ § 3582(c)(2) motion for abuse of discretion, but

review de novo the District Court’s legal interpretation of relevant statutes and

guidelines. See United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009).




                                             3
                                            III.

       A sentence reduction under § 3582(c)(2) is available only if, inter alia, the

defendant was “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); see

also United States v. Thompson, 682 F.3d 285, 287 (3d Cir. 2012). This language

permits a reduction on the basis of a Guidelines amendment only if the amendment

“‘ha[s] the effect of lowering the sentencing range actually used at sentencing.’” Mateo,

560 F.3d at 155 (quoting United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008)).

       We reject Lewis’ interpretation of Dorsey. The changes to the statutory penalties

for cocaine base offenses do not apply retroactively to defendants (like Lewis) who

committed their crimes and were sentenced before the FSA’s enactment. See United

States v. Reevey, 631 F.3d 110, 113–15 (3d Cir. 2010); see also Dorsey, 132 S. Ct. at

2335 (noting that the ordinary practice in federal sentencing “is to apply new penalties to

defendants not yet sentenced, while withholding that change from defendants already

sentenced”). Instead, Dorsey specifically held that the FSA applies to defendants who

committed their offenses before the FSA was enacted but were sentenced after its

effective date. 132 S. Ct. at 2326. Accordingly, Lewis’ reliance on Dorsey is misplaced

because he committed his offenses and was sentenced four years prior to the FSA’s

effective date.

       Furthermore, Lewis’ argument that Amendment 750 retroactively applies to lower

his mandatory minimum sentence for the cocaine base convictions to 60 months is
                                             4
misguided. Amendment 750, effective November 1, 2011, lowered the base offense

levels for crack cocaine quantities listed in U.S.S.G. § 2D1.1(c) to conform to the FSA.

Amendment 750 does apply retroactively, as it is listed in U.S.S.G. § 1B1.10(c) among

the amendments given retroactive effect for a § 3582(c)(2) sentence reduction. See

United States v. Curet, 670 F.3d 296, 309 (1st Cir. 2012). However, the Sentencing

Commission has recognized:

       [A] reduction in the defendant’s term of imprisonment is not authorized
       under 18 U.S.C. § 3582(c)(2) and is not consistent with this policy
       statement if . . . an amendment . . . is applicable to the defendant but the
       amendment does not have the effect of lowering the defendant’s applicable
       guideline range because of the operation of another . . . statutory provision
       (e.g., a statutory mandatory minimum term of imprisonment).

U.S.S.G. § 1B1.10 cmt. n.1. Again, the changes to the statutory penalties do not apply

retroactively to defendants sentenced before the FSA’s enactment.1 Reevey, 631 F.3d at

113–15.

       Here, Lewis’ Guidelines range called for 151 to 188 months’ incarceration before

the addition of the mandatory minimum of 60 months for the firearms offense. However,

the District Court granted a variance and imposed the mandatory minimum of 120

months’ incarceration for the crack cocaine convictions. Accordingly, this required


1
  We recently held:
 [W]hen a defendant was subject to a mandatory minimum term and was sentenced to a term
pursuant to the guidelines but below the mandatory minimum as a result of a § 3553 motion by
the government, and when the sentencing range is later lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 994(o), that defendant is eligible to move for reduction of sentence
pursuant to § 3582(c)(2). United States v. Savani, __ F.3d __, No. 11-4359, slip. op. at 26
(3d Cir. Apr. 24, 2013). However, hardly any, if any at all, of these conditions are applicable to
                                                 5
sentence is not affected by Amendment 750, and Lewis is not entitled to rely on the

FSA’s statutory changes for relief under § 3582(c)(2).

       In his reply brief, Lewis argues that the District Court erred by not also construing

his motion as a motion to modify his term of imprisonment pursuant to 18 U.S.C.

§ 3582(c)(1)(B). Lewis asks this Court to vacate the District Court’s August 8, 2012

order and remand the matter to allow the District Court to consider his motion under

§ 3582(c)(1)(B) to reduce his sentence to 120 months.

       Section 3582(c)(1)(B) allows a district court to “modify an imposed term of

imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the

Federal Rules of Criminal Procedure.” While we must interpret pro se pleadings

liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), nowhere in Lewis’ motion

does he mention § 3582(c)(1)(B) as a basis for requested relief. However, because Lewis

was found responsible for 98 grams of cocaine base, he is subject to a mandatory ten-year

minimum penalty even under the FSA. See Dorsey, 132 S. Ct. at 2326; Reevey, 631 F.3d

at 114–15. Moreover, to the extent he relies on Fed. R. Crim. P. 35(a) (providing that,

“[w]ithin 14 days after sentencing, the court may correct a sentence that resulted from

arithmetical, technical, or other clear error”), the District Court would lack jurisdiction to

grant relief on this basis because the time limit has long since expired, see United States

v. Higgs, 504 F.3d 456, 464 (3d Cir. 2007) (holding that Rule 35(a)’s time limit is




Lewis. Furthermore, Savani does not provide the relief Lewis seeks in his § 3582(c)(2) motion.
                                               6
jurisdictional). Accordingly, the District Court did not err by not considering Lewis’

motion as a motion under § 3582(c)(1)(B).

                                            IV.

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




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