                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 12-1280
                                  ___________

                       UNITED STATES OF AMERICA

                                        v.

                        NATHANIEL MONTGOMERY
                                 a/k/a
                              “SHU SHU”

                                Nathaniel Montgomery,
                                       Appellant
                   ____________________________________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                    (D.C. Criminal No. 2:02-cr-00172-020)
                   District Judge: Honorable Stewart Dalzell
                  ____________________________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                                June 1, 2012
  Before: SCIRICA, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges

                         (Opinion filed: June 11, 2012 )
                                  _________

                                   OPINION
                                   _________

PER CURIAM

    Nathaniel Montgomery appeals the denial of the motion he filed pursuant to 18

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U.S.C. § 3582(c)(2) in the United States District Court for the Eastern District of

Pennsylvania. We will affirm.

       Because we write primarily for the parties, we will but briefly recite the facts of

this case. Montgomery was indicted on a drug-conspiracy charge stemming from his role

in the notorious Carter Organization; specifically, he was charged with conspiracy to

distribute more than five kilograms of powder cocaine and more than fifty grams of crack

cocaine, in violation of 21 U.S.C. § 846. Following a jury trial, Montgomery was

convicted of the offense. The pre-sentence report (PSR) prepared by the probation office

determined that Montgomery was “accountable for greater than 1.5 kilograms of cocaine

base (“crack”); and greater than 150 kilograms of powder cocaine (which combine to

equate to a minimum of 60,000 kilograms of marijuana) in furtherance of the criminal

activity.” PSR ¶ 63. Applying the November 2003 Sentencing Guidelines, the PSR set

Montgomery’s base offense level at 38. See U.S.S.G. § 2D1.1(c)(1) (2003). Following a

Booker 1 remand, Montgomery was resentenced in 2006 to a term of 280 months of

incarceration. We affirmed his sentence on direct appeal. See generally United States v.

Montgomery, No. 06-1569, 2007 U.S. App. LEXIS 25258 (3d Cir. Oct. 26, 2007).

       Since that time, both the statutory terms and Guidelines ranges attached to crack

offenses have been lowered, and Montgomery has endeavored to avail himself of the

changes. In the appeal from one of Montgomery’s previous, unsuccessful attempts to

seek relief via § 3582(c)(2), we explained to him why he might encounter difficulty


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premising his motion on the changed crack sentencing ranges: “[t]he more than 150

kilograms of powder cocaine for which he was responsible supports his base offense

level, wholly apart from any changes to the Crack Cocaine Guidelines range.” United

States v. Montgomery, 398 F. App’x 843, 845 (3d Cir. 2010).

       Montgomery filed this § 3582(c)(2) motion pursuant to Guidelines Amendment

750, 2 arguing that he was eligible for a reduction in his sentence due to the further

lowering of the crack Guidelines. The District Court denied relief, reemphasizing that

Montgomery’s powder cocaine range had not changed. Montgomery appealed.

       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).

       The District Court rightly concluded that Montgomery was not entitled to relief

under § 3582(c)(2), which allows for a sentence reduction based on “a sentencing range



1
  United States v. Booker, 543 U.S. 220 (2005).
2
  The amendment “re-promulgate[d] as permanent the temporary, emergency amendment
(effective Nov. 1, 2010) that implemented the emergency directive in section 8 of the Fair
Sentencing Act of 2010, Pub. L. 111–220 (the ‘Act’). The Act reduced the statutory
penalties for cocaine base (‘crack cocaine’) offenses, eliminated the statutory mandatory
minimum sentence for simple possession of crack cocaine, and contained directives to the
Commission to review and amend the guidelines to account for specified aggravating and
mitigating circumstances in certain drug cases.” U.S. Sentencing Guidelines Manual app.
C Vol. 3, at 392 (2011), available at
                                              3
that has subsequently been lowered by the Sentencing Commission.” The sentencing

range for powder cocaine was left unaltered by the modifications to the crack Guidelines.

Compare U.S.S.G. § 2D1.1(c)(1) (2011), with U.S.S.G. § 2D1.1(c)(1) (2003). Thus, our

observation from Montgomery’s prior appeal retains its full force: the cocaine exposure

alone would suffice to place Montgomery at a base offense level of 38. Recognizing this

impediment, Montgomery argues that the amount of crack and powder cocaine with

which he was associated in the PSR represented “extrapolated drug amounts”; and, thus,

he maintains that the lowering of the Guidelines range attached to 1.5 kilograms of crack

(compare U.S.S.G. § 2D1.1(c)(3) (2011), with U.S.S.G. § 2D1.1(c)(1) (2003)) could

conceivably lead to an independent reevaluation of his sentence. But § 3582 authorizes

“only a limited adjustment to an otherwise final sentence and not a plenary resentencing

proceeding.” Dillon v. United States, ___ U.S. ___, 130 S. Ct. 2683, 2691 (2010)

(emphasis added). The District Court is not authorized, via § 3582(c)(2), to conduct the

inquiry Montgomery seeks in the absence of a lowered Guidelines range, and here there

is no question that the applicable range was not lowered. 3 Therefore, relief was properly

denied. Because we find the language of § 3582(c)(2) sufficient to so conclude, we need



http://www.ussc.gov/guidelines/2011_Guidelines/Manual_PDF/Appendix_C_Vol_III.pdf
.
3
  Moreover, Montgomery’s bifurcation of his sentence into “crack” and “powder”
components is undermined by the fact that he was convicted on a single count of
conspiracy to distribute both drugs. See Montgomery, 2007 U.S. App. LEXIS 25258, at
*3. We find no record support for Montgomery’s contention that he was sentenced
“only” for the crack portion of the conspiracy. See, e.g., Apr. 30, 2004 Tr. 46:19–22
(adopting the PSR, as amended, as the findings of the District Court during sentencing).
                                             4
not address Montgomery’s claim that portions of the Guidelines are unconstitutional.

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




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