CLD-436                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-3523
                                     ____________

                           UNITED STATES OF AMERICA

                                           v.

                              GEORGE GONZALEZ,
                                                Appellant.
                       __________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                         (D.C. Crim. No. 4-02-cr-00271-002)
                            District Judge: John E. Jones, III
                      __________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  September 26, 2013

             Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                           (Opinion filed: October 16, 2013)
                                    ____________

                                       OPINION
                                     ____________


PER CURIAM

      Appellant George Gonzalez, a federal prisoner, appeals from an order of the

District Court denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2).

For the reasons that follow, we will summarily affirm.
       In 2003, Gonzalez pleaded guilty in the United States District Court for the Middle

District of Pennsylvania to conspiracy to distribute cocaine base, an offense which

exposed him to a 10-year mandatory minimum sentence. Gonzalez, however, was a

career offender, and so his Guidelines imprisonment range accordingly was calculated to

be 262 to 327 months, well above the 10-year mandatory minimum. The District Court

granted the Government’s § 5K1.1 motion for substantial assistance; Gonzalez’s career

offender sentence exposure was reduced from 262 to 327 months to 168 to 210 months.

Gonzalez was sentenced to a term of imprisonment of 168 months.

       At issue in this appeal, Gonzalez filed a motion pursuant to section 3582(c)(2),

seeking a reduction in his sentence based on our decision in United States v. Savani, ---

F.3d ---, 2013 WL 2462941 (3d Cir. June 10, 2013). After the Federal Public Defender

expressed the view that a reduction was not authorized for Gonzalez, the District Court,

in an order entered on August 5, 2013, denied the motion.

       Gonzalez appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk

advised the parties that we might act summarily under Third Cir. LAR 27.4 and I.O.P.

10.6 to dispose of the appeal. Under Third Circuit LAR 27.4 and I.O.P. 10.6, we may

summarily dispose of an appeal when it clearly appears that no substantial question is

presented by the appeal. Gonzalez has submitted a written summary action response,

which we have considered.

       We will summarily affirm because no substantial question is presented by this

appeal. Under section 3582(c)(2), a defendant who has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered, may

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move for a reduction in his sentence. The District Court’s ultimate decision to deny a

section 3582(c)(2) motion is reviewed for an abuse of discretion, but we review de novo

the District Court’s interpretation of the Guidelines. See United States v. Mateo, 560

F.3d 152, 154 (3d Cir. 2009).

       Here, the District Court concluded that no reduction was possible because

Gonzalez was sentenced as a career offender to a term of imprisonment (168 months)

well above the mandatory minimum applicable to his offense (120 months). We agree.

The Fair Sentencing Act (“FSA”), signed into law on August 3, 2010, raised the

minimum quantity of crack cocaine required to trigger the 5- and 10-year mandatory

minimums. See Savani, --- F.3d at ---, 2013 WL 2462941, at *3. The amendments

which implemented the FSA apply retroactively. See id. In Savani, we held that “when 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[e]

motion by the government, and when the sentencing range is later lowered by the

Sentencing Commission … , that defendant is eligible to move for reduction of sentence

pursuant to § 3582(c)(2).” Id. at *9.

       A reduction in sentence is not authorized for Gonzalez by the FSA and Savani,

because he was sentenced based on the Guidelines range applicable to his career offender

status and the Government’s § 5K1.1 motion to a term of imprisonment well above the

mandatory minimum of 10 years. Gonzalez has attached to his summary action response

a decision by the District Court denying his December, 2011 section 3582(c)(2) motion,

in which the court stated that he was resentenced on August 10, 2005 to a term of

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imprisonment of 108 months. As clarified by the District Court in the order now being

appealed, this was an inadvertent misstatement. Gonzalez was never sentenced to a term

of imprisonment lower than 168 months, as is plainly clear from a review of the entire

criminal record in his case.

       For the foregoing reasons, we will summarily affirm the order of the District Court

denying appellant’s motion for reduction of sentence.




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