NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-1694
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UNITED STATES OF AMERICA
v.
BERNARD JONES
a/k/a " Butter ",
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 01-cr-00401)
District Judge: Honorable Edwin M. Kosik
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Submitted Under Third Circuit LAR 34.1(a)
October 23, 2012
Before: HARDIMAN, GREENAWAY, JR., and VANASKIE, Circuit Judges.
(Opinion Filed: November 14, 2012)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Bernard Jones appeals the District Court’s order denying his motion to reduce
sentence. We will affirm.
I
Because we write for the parties, who are well acquainted with the case, we recite
only the facts and procedural history essential to its disposition.
In 2004, Bernard Jones was found guilty of various crack cocaine offenses. Under
the then-mandatory United States Sentencing Guidelines (Guidelines), Jones’s initial
offense level of 42 corresponded to an imprisonment term of 360 months to life. He was
sentenced to 360 months’ imprisonment.
In 2005, we vacated and remanded Jones’s sentence in light of the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220 (2005), which held that the
Guidelines were merely advisory. United States v. Jones, 142 F. App’x 653, 654 (3d Cir.
2005). The District Court then imposed a new below-Guidelines sentence of 240 months’
imprisonment based on various mitigating circumstances. Jones appealed that sentence
and we affirmed. United States v. Jones, 222 F. App’x 113, 114–15 (3d Cir. 2007).
In 2007, the Sentencing Commission retroactively amended the Guidelines, which
reduced the bottom of Jones’s sentencing range from 360 months to 292 months. Jones
requested a sentence reduction under 18 U.S.C. § 3582(c) and the District Court granted
him a proportional sentence reduction from 240 months to 195 months.
In 2011, the Sentencing Commission again retroactively amended the Guidelines,
which reduced the bottom of Jones’s sentencing range from 292 months to 235 months.
This time, however, the Sentencing Commission also adopted a policy statement
providing that “the court shall not reduce the defendant’s term of imprisonment . . . to a
term that is less than the minimum of the amended guideline range.” USSG §
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1B1.10(b)(2)(A). Jones filed another motion for a sentence reduction under § 3582,
which was denied on the grounds that Jones’s sentence was already “below the
recalculated range.” Jones now appeals the order of the District Court denying that
motion.
II
The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3582 and we have
jurisdiction over Jones’s appeal under 28 U.S.C. § 1291. Because the District Court
based its decision on the legal conclusion that Jones was not eligible for a sentence
reduction because his sentence was already below the recalculated Guidelines range, our
review is plenary. See United States v. Sanchez, 562 F.3d 275, 277–78 (3d Cir. 2009),
overruled on other grounds by Freeman v. United States, 131 S. Ct. 2685 (2011).
III
Under 18 U.S.C. § 3582(c)(2), “in the case of a defendant who has been sentenced
to a term of imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . the court may reduce the term of
imprisonment . . . if such a reduction is consistent with the applicable policy statements
issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
In this case, it is undisputed that Jones’s sentence was 195 months, while the
“minimum of the amended guideline range” is 235 months. Therefore, by the terms of §
3582 and the Sentencing Commission’s 2011 policy statement, Jones is not eligible for
another sentence reduction.
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In an attempt to avoid this result, Jones argues that the Sentencing Commission’s
policy statement is invalid because it exceeds the Sentencing Commission’s authority,
and because it violates separation of powers principles. We rejected these arguments in a
recent precedential opinion of the Court. United States v. Berberena, Nos. 11–4540, 12–
1103, 2012 WL 3937666, at *3–10 (3d Cir. Sept. 11, 2012). In a letter submitted
pursuant to Fed. R. App. P. 28(j) Jones concedes, as he must, that his “appeal raises the
same issues/arguments that the Court addressed in Berberena.” Accordingly, we will
affirm the order of the District Court.
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